People v. Whitaker

118 A.D.3d 483, 987 N.Y.S.2d 138

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2014
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered March 12, 2012, as amended April 17, 2012, convicting defendant, after a jury trial, of attempted rape in the first degree and assault in the second degree, and sentencing him, as a second felony offender, to consecutive terms of 15 years and seven years, respectively, unanimously modified, on the law, to the extent of directing that the sentences run concurrently, and otherwise affirmed.

Concurrent sentences were required because the two convictions were based on the same act (see Penal Law § 70.25 [2]). Defendant’s act of punching the victim in the face while he was on top of her was the force necessary to subdue her in furtherance of the attempted rape (see e.g. People v Carmona, 205 AD2d 443 [1st Dept 1994], lv denied 84 NY2d 866 [1994]; People v Bolden, 83 AD2d 921 [1st Dept 1981], affd 58 NY2d 741 [1982]).

Concur—Tom, J.P, Friedman, Renwick, Gische and Clark, JJ.