Ordered that the judgment imposed under Indictment No. 9169/88, is modified, on the law, by providing that the term of imprisonment imposed for manslaughter in the first degree shall run consecutively to the term of imprisonment imposed for assault in the first degree, but concurrently with the term of imprisonment imposed for criminal possession of a weapon in the second degree; as so modified, the judgment under Indictment No. 9169/88 is affirmed; and it is further,
Ordered that the judgment imposed under Indictment No. 7801/88 is affirmed.
There is no merit to the defendant's contention that the trial court erred in failing to charge assault in the second degree as a lesser included offense of assault in the first degree, because no reasonable view of the evidence could support the finding that the defendant only intended to cause "physical injury" and not a "serious physical injury" to the complainant (see, People v. Glover, 57 N.Y.2d 61, 63; People v. Scarborough, 49 N.Y.2d 364, 373; People v. Cuba, 154 A.D.2d 703, 704; People v Tatta, 177 A.D.2d 674). In viewing the evidence in the light most favorable to the defendant (see, People v. Johnson, 45 N.Y.2d 546, 549), we note that the defendant, acting in concert with another, followed the complainant and his companion into an apartment building, shot at the complainant's companion several times, hitting him in the back, buttocks, and legs, causing the companion's death, and also shot the complainant once in the buttocks. The defendant's conduct negated every possible hypothesis but the defendant's guilt of assault in the first degree (see, People v. Cuba, supra; People v. Tatta, supra; People v. McMillion, 181 A.D.2d 997, 998; People v. Porter, 69 A.D.2d 1007). Furthermore, there is no merit to the defendant's contention that the jury could have found that the complainant did not suffer a "serious physical injury" within the meaning of Penal Law § 120.10 (1) (see, People v. Beatty, 134 A.D.2d 602).
Because the evidence in the record indicated that the counts charging the defendant with criminal possession of a weapon in the second degree and manslaughter in the first degree were not separate and distinct acts, the term of imprisonment imposed for criminal possession of a weapon should run concurrently with the term of imprisonment imposed for manslaughter. Therefore, we modify the sentence accordingly (see, People v. Huston, 187 A.D.2d 275; People v. Wallace, 152 A.D.2d 713). Thompson, J.P., Sullivan, Lawrence and Eiber, JJ., concur.