Opinion
June 25, 1963
Judgment convicting defendant after jury trial, on three counts of robbery in the first degree and one count of criminally carrying concealed or loaded pistol, unanimously modified on the law and the facts, so as to provide that each of the sentences of 10 to 20 years on each of the robbery counts shall run concurrently, and not consecutively; and as so modified affirmed. In our opinion, under the circumstances here, the imposition of consecutive sentences rather than concurrent sentences was excessive. While we otherwise affirm, we note that certain of the statements of the District Attorney in summation were improper, including his ill-advised comparison of the ethnic backgrounds of a witness and of the defendant in his discussion of the issue of identification. (See People v. Hearns, 18 A.D.2d 922; People v. Burris, 19 A.D.2d 557.) However, the improper statements on the issue of identification related only to one of the crimes charged, and, on the record here, the evidence of defendant's identification as the one who committed the several robberies was clear and convincing. So, we conclude that the prosecutor's remarks do not preclude affirmance here. (See Code Crim. Pro., § 542.)
Concur — Rabin, J.P., Stevens, Eager, Bergan and Bastow, JJ.