Opinion
December 13, 1993
Appeal from the Supreme Court, Kings County (Marrus, J.).
Ordered that the sentence is modified, on the law, by providing that the terms of imprisonment shall run concurrently with each other; as so modified, the sentence is affirmed.
We conclude that the imposition of consecutive terms of imprisonment violated Penal Law § 70.25 (2), as the transcript of the plea proceeding demonstrates that the two charges of which the defendant was convicted were based on the same act (see, People v Ali, 188 A.D.2d 476; see also, People v Day, 73 N.Y.2d 208; People v Jenkins, 176 A.D.2d 348; People v Kuey, 155 A.D.2d 481). The defendant admitted that he and an accomplice were attempting to rob the victim and that his accomplice shot the victim when the latter resisted. Contrary to the People's contention, the record does not establish that the plea agreement was premised on the parties' specific understanding that the two offenses were separate acts (cf., People v Streeter, 198 A.D.2d 456).
Accordingly, the defendant's sentence is modified to make the terms of imprisonment run concurrently with each other.
As modified, the defendant's sentence is neither harsh nor excessive (see, People v Suitte, 90 A.D.2d 80). Mangano, P.J., Bracken, Eiber, O'Brien and Pizzuto, JJ., concur.