        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

513
KA 10-01978
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY BAKER, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (GREGORY A. KILBURN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (MARSHALL A. KELLY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered January 19, 2010. The judgment convicted defendant,
upon a jury verdict, of criminal possession of a weapon in the third
degree (three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the sentences
imposed shall all run concurrently and as modified the judgment is
affirmed.

     Memorandum: On appeal from a judgment convicting him, upon a
jury verdict, of three counts of criminal possession of a weapon in
the third degree (Penal Law § 265.02 [1]), defendant contends that
County Court erred in directing that the sentences imposed on counts
two and three shall run concurrently with each other but consecutively
to the sentence imposed on count one. We agree. Defendant was
convicted of possessing three weapons, i.e., a rifle (count one) and
two knives (counts two and three), on a specified date in Village Park
in Warsaw with the intent to use those weapons unlawfully against two
of his siblings. Because “defendant possessed [the weapons] at the
same place and time, with the intent to use them unlawfully against
the same victim[s,] . . . the offenses arose from the same act, [and
thus] concurrent sentences should have been imposed” (People v
Cleveland, 236 AD2d 802, lv denied 89 NY2d 1033; see People v
Williams, 144 AD2d 1012, 1012, lv denied 73 NY2d 984; see also People
v Taylor, 197 AD2d 858, 859). We therefore modify the judgment
accordingly.

     We reject defendant’s contention that the court erred in failing
to address the constitutionality of his 1997 conviction of driving
while intoxicated, which conviction elevated the crimes with which he
was charged from criminal possession of a weapon in the fourth degree
                                 -2-                           513
                                                         KA 10-01978

to criminal possession of a weapon in the third degree. It is well
settled that, where there are procedural vehicles for challenging the
constitutionality of prior guilty pleas in the courts in which those
guilty pleas were entered, a defendant’s right to due process is not
violated in a subsequent case by the lack of a procedural vehicle for
challenging a prior conviction resulting from a guilty plea that
serves as the basis for an enhanced charge or sentence (see People v
Knack, 72 NY2d 825, 826-827). Finally, we reject defendant’s
contention that the conviction is not supported by legally sufficient
evidence (see generally People v Bleakley, 69 NY2d 490, 495) and,
viewing the evidence in light of the elements of the crimes as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we further
conclude that the verdict is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495).




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
