Argued April 26, 2005; decided June 7, 2005

People v Hamilton, 3 AD3d 405, modified.

Rosenblatt, J.

Concluding that he shot two people, killing one of them, a Supreme Court jury found defendant guilty of manslaughter in the {**4 NY3d at 657}first degree (Penal Law § 125.20 [1]), assault in [*2]the first degree (Penal Law § 120.10 [3]), criminal possession of a weapon in the second degree (Penal Law § 265.03), and reckless endangerment in the first degree (Penal Law § 120.25). We hold that the trial court violated Penal Law § 70.25 (2) when it imposed defendant's weapon possession sentence to run consecutively with his sentences for manslaughter and assault.

The People's evidence came largely from Anthony Smith, Anthony Bunch and Albert Hale. They testified that while on a Bronx street, they encountered Hubert Roberts. At the time, defendant was peeking out of the doorway of a building in which defendant's cousin, Rondell Purnell, lived. When Roberts said he was about to leave, defendant went inside the building and immediately emerged with a gun in his hand. He approached Roberts and, after a verbal dispute, shot him in the head, killing him. Defendant then shot Anthony Smith in the back, as Smith was running away. As for motive, the People introduced proof that defendant was enraged over the disappearance of a gun from Purnell's residence, and that he shot Roberts and Smith, mistakenly believing they stole the weapon.

The court sentenced defendant to consecutive prison terms of 12½ to 25 years for manslaughter for killing Roberts and 7½ to 15 years for assault for having shot and injured Smith, to run concurrently with a 21/3 to 7 year sentence for reckless endangerment. Pertinent to this appeal, the court also imposed a 7½ to 15 year sentence for weapon possession to run consecutively with the manslaughter and assault sentences. Defendant acknowledges that the court had the authority to sentence him consecutively for the Roberts manslaughter and the Smith assault. He contends, however, that by running the weapon sentence consecutively to the others, the court violated Penal Law § 70.25 (2). The Appellate Division affirmed defendant's conviction and a Judge of this Court granted defendant leave to appeal. We agree with defendant's contention and therefore modify the Appellate Division order and remit the case to Supreme Court for resentencing.

Penal Law § 70.25 governs the imposition of concurrent and consecutive sentences. Pursuant to subdivision (2),

"[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the {**4 NY3d at 658}offenses and also was a material element of the other, the sentences . . . must run concurrently."

Under either of those circumstances, the court has no discretion; concurrent sentences are mandated (see People v Ramírez, 89 NY2d 444 [1996]; see generally William Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 70.25, at 241-242). [*3]

Here, the jury found defendant guilty of second-degree weapon possession for having possessed a pistol "with intent to use [it] unlawfully against another." There is no doubt as to who the other person or persons were.

According to the other counts of the indictment and the proof at trial, defendant used a pistol—the only one involved in this case—to shoot Roberts and Smith. There is no allegation that the weapon count referred to a different pistol or a different event and the prosecution does not contend otherwise.^[FN1] The weapon count thus overlapped with the manslaughter and assault counts, and there was no proof of a separate intent to use the gun unlawfully.

Defendant correctly argues that, to be sentenced consecutively on the weapon charge, it would have been necessary for the People to establish that he possessed the pistol with a purpose unrelated to his intent to shoot Roberts and Smith. People v Parks (95 NY2d 811 [2000]) and People v Sturkey (77 NY2d 979 [1991]) support defendant's argument.

In Parks, defendant was indicted on several counts of murder and robbery, along with other related crimes. The felony murder count charged Parks with having killed one of the victims in the course and furtherance of a robbery. He was also charged with robbing other victims at the scene. The indictment, however, did not identify which robbery served as the predicate for felony murder, nor did the court in its instructions to the jury. Because it was impossible to tell which robbery was "separate and distinct" from the felony murder, we held that the court improperly sentenced defendant to consecutive sentences on two of the robbery counts.

The same issue arose in Sturkey. There, the defendant was convicted of robbery, reckless endangerment and criminal possession{**4 NY3d at 659} of a weapon in the third degree, arising out of a scuffle with a police officer. During the encounter, Sturkey seized the officer's gun. We held that the robbery and gun possession were part of the same act of seizing the gun from the officer. Under those circumstances, consecutive sentences for robbery and weapon possession were [*4]impermissible under Penal Law § 70.25 (2). The same holds true here.^[FN2] Because the weapon possession was not separate and distinct from the shootings, the statute prohibits consecutive sentences.

We have considered defendant's other contentions by which he seeks a reversal and a new trial and find them without merit. Accordingly, the order of the Appellate Division should be modified by vacating the sentence imposed on defendant's conviction for criminal possession of a weapon in the second degree and remitting to Supreme Court for resentencing, and, as so modified, affirmed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order modified, etc.