Opinion
October 18, 1994
Appeal from the Supreme Court, New York County (Dorothy Cropper, J.).
Evidence at trial was that defendant shot the mother of his child at point-blank range, then fired at her boyfriend but missed, and then grabbed his baby and fled. Acquitted of attempted murder in the second degree, defendant's argument that his conviction for first degree criminal use of a firearm must be reversed and the charge dismissed because he was not convicted of any class B violent felony offense is a repugnancy claim that is not preserved for appellate review as a matter of law because never raised prior to the discharge of the jury (People v Aponte, 194 A.D.2d 315, lv denied 82 N.Y.2d 713). We note that Penal Law § 265.09 requires only that the defendant "commit" a class B violent felony offense, not that he be convicted of such, and decline to review defendant's claim in the interest of justice since any such review would necessarily involve speculation as to the jury's deliberative process.
Defendant's objection to note-taking by a juror and request that the notes be confiscated, which resulted in an instruction by the court that notes were not to be used during deliberations, did not preserve for appellate review defendant's present claim that the court should have instructed the jury, sua sponte, on the proper use of notes during deliberations (see, People v Stewart, 81 N.Y.2d 877). Since it does not appear that the juror actually used notes during deliberations and we do not presume that the juror disregarded the court's instructions (People v Morales, 159 A.D.2d 86), requiring cautionary instructions when note-taking is permitted does not apply.
Since these separate shootings were separate acts directed at separate victims, albeit in close sequence, and neither offense was a material element of the other, the court's imposition of consecutive sentences was legal (Penal Law § 70.25; see, People v. Day, 73 N.Y.2d 208, 212; People v. Vasquez, 134 A.D.2d 468, 469, lv denied 70 N.Y.2d 1011). Nor do we perceive any abuse in sentencing discretion.
Concur — Wallach, J.P., Kupferman, Ross, Asch and Rubin, JJ.