Summary
finding separate acts where defendant put a gun in his pants and then went downstairs, spoke with deceased, and shot him in the head
Summary of this case from Scullark v. GreinerOpinion
November 17, 1994
Appeal from the Supreme Court, New York County, Dorothy A. Cropper, J.
On August 14, 1991, defendant was visiting his ex-girlfriend, Tanacia McLean, at Ms. McLean's apartment when Kevin Turner, her current boyfriend, called on the intercom from outside the building. Ms. McLean's brother, who was also present in the apartment, allegedly saw defendant put a gun in the front of his pants immediately following Mr. Turner's call. Defendant, at the behest of his ex-girlfriend, allegedly agreed to remain in the apartment while she went downstairs to speak with Mr. Turner. After Ms. McLean and Mr. Turner began arguing, defendant descended the stairs and, after a brief verbal confrontation, shot Mr. Turner in the head, inflicting a wound from which he died two days later.
Contrary to defendant's assertions, the plea bargain, which provided that the manslaughter count was to run consecutively with the weapons counts, was not improper. It is clear that defendant's possession of a weapon, which was complete prior to the shooting, and its subsequent use were separate, successive acts allowing for the imposition of consecutive sentences (see, Penal Law § 70.25; People v. Valverde, 205 A.D.2d 444, 445; People v. Southern, 198 A.D.2d 24, 25, lv denied 83 N.Y.2d 810; People v. Davis, 174 A.D.2d 369, 370, lv denied 83 N.Y.2d 966; People v. Robbins, 118 A.D.2d 820, lv denied 67 N.Y.2d 949).
The unpublished Decision and Order of this Court entered on October 20, 1994 is recalled and vacated.
Concur — Murphy, P.J., Sullivan, Rosenberger, Nardelli and Tom, JJ.