PEOPLE v. SEDNEY

ORDERED that the judgment rendered on Indictment No. 3666/95 is modified, on the law, by providing that all of the sentences are to run concurrently; as so modified, the judgment is affirmed; and it is further,

ORDERED that the judgment rendered on Indictment No. 1707/95 is affirmed.

Contrary to the defendant's contention, the testimony with respect to his convictions on the two counts of attempted robbery in the first degree was not incredible as a matter of law ( see People v. Lambert, 272 A.D.2d 413, 414; People v. Higgins, 179 A.D.2d 778; People v. Garafolo, 44 A.D.2d 86). Rather, the testimony merely raised issues of credibility to be resolved by the jury ( see People v. Davis, 299 A.D.2d 420, 422; People v. Garafolo, supra). However, the Supreme Court erred in directing the sentences imposed on the attempted robbery counts to run consecutively to the sentences imposed on the remaining counts. Either the attempted robbery counts were committed through a single act making up a remaining count or a remaining count constituted a material element of the same ( see Penal Law § 70.25; People v. Laureano, 87 N.Y.2d 640, 644; People v. Garcia, 287 A.D.2d 466, 467; People v. Battle, 249 A.D.2d 116, 117-118; People v. Reyes, 239 A.D.2d 524, 525; People v. Banks, 208 A.D.2d 759, 760). Consequently, all of the sentences on the conviction under Indictment No. 3666/95 should have been imposed to run concurrently.

The defendant's remaining contentions either are unpreserved for appellate review, without merit, or need not be reached in light of our determination.

RITTER, J.P., GOLDSTEIN, TOWNES and CRANE, JJ., concur.