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Defendant Brings Motion to Set Aside Consecutive Sentences


A man was charged for attempted murder in the second degree, assault in the first degree and criminal use of a firearm in the first degree. The charges were an incident which happened one evening at the corner of an avenue. A New York DWI Lawyer said the complainant together with another friend was approached by the man with his two companions. The discussion among them about the recent theft of the bicycle escalated into a heated argument at which the man told the complainant to mind his own business. The complainant hit the man once, whereupon the man took his gun out of his trench coat’s pocket, pointed it at the complainant’s face and fired. The complainant turned his head away from the shot and the bullet entered his left temple, lodging outside the brain case, where it remains. As the complainant ran from the scene seeking transportation to the hospital, the man held onto the gun and also left the area.

After a non-jury trial, the man was convicted of assault in the second degree and criminal possession of a weapon in the third degree. He was sentenced to consecutive indeterminate terms of imprisonment of two to six years and one year eight months to five years. However, the man moves to set aside the sentence on the grounds that consecutive sentences were unauthorized and illegally imposed.

Consequently, the man was acquitted of the charges of attempted murder, assault and criminal use of a firearm but was found guilty of the lesser-included crimes of assault in the second degree causing physical injury to the complainant and criminal possession of a weapon in the third degree having the gun in his coat pocket when he arrived at the scene and when he left the scene.

The man contends that his consecutive sentences must be leaved because the law mandates concurrent sentences for the assault and weapon possession convictions. A New York DWI Lawyer said the district attorney then concedes error and agrees with the man’s contention that the consecutive sentences should be vacated, but urges the court to resentence the man to concurrent terms of 2 1/3 to 7 years, the maximum for a class D felony. The concession, as well as the man’s argument, is rejected.

Based on records, the criminal possession of a weapon in the third degree includes that an individual knows that he is in possession of a loaded handgun. Further, the assault in the second degree includes an intent to cause physical injury, causes such injury and by means use of a deadly weapon. In addition, the penal law provides that sentences must run concurrently with each other where the underlying offenses were committed such as through a single act or through an act at which in itself constituted one of the offenses and also was a material element of the other.

The possession of the gun and assaulting the victim were not two crimes committed through a single act. The assault, occurring in an entirely separate factual scenario and with distinct, briefly overlapped the continuing crime of unlawful possession of a loaded gun. Since it was distinct in fact, spatially and temporally, it is distinct in law.

Consequently, apart from the technical distinctions posed that it is bad policy to give a free ride to a man who has been unlawfully carrying around a loaded concealed handgun, the crime was completed long before the victim was shot in the head. Indeed, a Nassau County DWI Lawyer said the two crimes are entirely distinct and severable. The assault could easily have been committed without concomitantly committing the crime by use of a licensed handgun or by a police officer.

As a result, the court finds the man’s motion to set aside the consecutive sentences and resentence him to concurrent sentences is denied.

There are times that a simple conversation can lead to argument causing worst situation. Whenever you get involved in a crime either you become the victim or the accused, ask help from the NY Criminal Lawyer. If you’ve been involved in possession of a weapon and you want assistance to lighten your conviction, call the NY Possession of a Weapon Lawyer at Stephen Bilkis and Associates.

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