

People v Service (2015 NY Slip Op 02687)





People v Service


2015 NY Slip Op 02687


Decided on March 31, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 31, 2015

Tom, J.P., Andrias, Saxe, Manzanet-Daniels, Kapnick, JJ.


14649 4184/08

[*1] The People of the State of New York, Respondent,
vMichael Service, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.
Michael Service, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered January 13, 2011, convicting defendant, after a jury trial, of murder in the second degree, assault in the first degree and two counts of criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 45 years to life, unanimously modified, on the law, to the extent of directing that the sentence for the weapon possession conviction (pursuant to Penal Law § 265.03[1][b]) under the fifth count of the indictment be served concurrently with the sentence for the murder conviction, and otherwise affirmed.
The court properly denied defendant's suppression motion. There is no basis for suppression of defendant's second and third statements. Approximately seven hours after defendant made an undisputedly voluntary initial statement, a detective preceded renewed interrogation with a reference to the fact that defendant had received Miranda warnings before his initial statement. This remark could not have reasonably been understood by defendant to mean that his prior waiver of rights was irrevocable, and "there was no reason to believe that defendant had forgotten or no longer understood his constitutional rights" (People v Hotchkiss, 260 AD2d 241, 241 [1st Dept 1999], lv denied 93 NY2d 1003 [1999]).
As the People concede, the sentence on the murder conviction should run concurrently with the sentence on the weapon possession conviction that requires unlawful intent (Penal Law § Penal Law 265.03[1][b]), because the latter offense was not complete until defendant shot the victims (see People v Wright, 19 NY3d 359, 363 [2012]). However, defendant's claim regarding [*2]the legality of other consecutive sentences is without merit (see People v Lopez, 15 AD3d 232 [1st Dept 2005], lv denied 4 NY3d 888 [2005]). We perceive no basis for reducing the sentence.
We have considered and rejected defendant's pro se claims.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 31, 2015
CLERK


