PEOPLE v. FULLAN

ORDERED that the judgment as modified by the decision and order of this court dated March 31, 1997, and by the opinion of the Court of Appeals dated February 18, 1999, is further modified by making the sentences imposed for the appellant's convictions of murder in the second degree under count two of the indictment and attempted kidnapping in the first degree run concurrently with each other and with the remaining sentences; as so further modified, the judgment is affirmed.

The Court of Appeals remitted the matter to this court for review of the facts pursuant to CPL 470.25(2)(d) and 470.40(2)(b). However, as the defendant has not raised any issues of fact or contended that the jury verdict was against the weight of the evidence, we decline to review the facts in the exercise of our interest of justice jurisdiction (see, People v. Khalek, 253 A.D.2d 892 ;People v. Colon, 246 A.D.2d 604 ).

Nevertheless, since the Court of Appeals has reinstated the appellant's convictions for attempted kidnapping in the first degree and murder in the second degree under count two of the indictment, and since the People correctly concede that those convictions are based on the same factual circumstances, the sentences imposed on the defendant's convictions on those counts must be modified to run concurrently (Penal Law § 70.25[2];People v. Day, 73 N.Y.2d 208 ; People v. Marro, 225 A.D.2d 796 ).

O'BRIEN, J.P., SANTUCCI, JOY and FRIEDMANN, JJ., concur.