Opinion
April 6, 1964
Appeal by defendant from a judgment of the Supreme Court, Nassau County, rendered May 11, 1962 after a jury trial, convicting him of: (a) felony murder in the first degree; (b) murder in the second degree; and (c) arson in the third degree; and sentencing him: (1) upon the jury's recommendation, to a term of life imprisonment on the first-degree murder count; (2) to a concurrent term of 40 years to life imprisonment on the second-degree murder count; and (3) as a prior felony offender, to a term of 10 to 20 years imprisonment on the arson conviction, to run consecutively with the other two counts. Judgment modified on the law by striking out the provision imposing a sentence of 40 years to life imprisonment on the second-degree murder conviction. As so modified, judgment affirmed. The findings of fact implicit in the jury's verdict are affirmed. In our opinion, it was improper to impose an additional sentence in respect of the crime of murder in the second degree committed by the same act which resulted in the conviction for murder in the first degree ( People v. Goggin, 256 App. Div. 995, affd. 281 N.Y. 611). The instructions to the jury concerning the order in which the jury could consider the various degrees of homicide were correct ( People v. Willson, 109 N.Y. 345; People v. Mussenden, 308 N.Y. 558, 562). Beldock, P.J., Ughetta, Christ, Hill and Rabin, JJ., concur.