PEOPLE v. BENITEZ

ORDERED that the judgment is modified, on the law, by providing that the term of imprisonment imposed for murder in the second degree under count three of the indictment (felony murder) shall run concurrently with the term of imprisonment imposed on the conviction for robbery in the first degree; as so modified, the judgment is affirmed.

The defendant's contention that alleged gestures made by a court employee during the jury charge constituted reversible error is unpreserved for appellate review (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245). Although the defense counsel alerted the court to the alleged conduct, he stated that he was "not sure" that it would "in any way prejudice" the defendant. Further, the defense counsel failed to move for a mistrial and never requested that the court give a curative instruction (see, People v. Thompson, 276 A.D.2d 811; People v. Stewart, 255 A.D.2d 343; People v. Yates, 207 A.D.2d 567). Were we to review this contention in the exercise of our interest of justice jurisdiction, we would find that it is without merit.

As the People correctly concede, the defendant's sentence for robbery in the first degree must be modified to run concurrently with the sentence imposed on the conviction of felony murder, as the robbery constituted the underlying felony for the felony murder conviction, and was a material element of that crime (see, Penal Law § 70.25; People v. Laureano, 87 N.Y.2d 640, 643; People v. Marro, 225 A.D.2d 796). However, the defendant's contention that the sentence imposed for the other murder conviction, based on depraved indifference, must run concurrently with the sentence imposed for the robbery count, is without merit (see, People v. Leo, 255 A.D.2d 458; People v. Fulton, 257 A.D.2d 774; People v. Meehan, 229 A.D.2d 715).

The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80).