presentence hearing in New York

1994We agree with the defendant’s contention that he was improperly sentenced as a second felony offender because the court denied his request for a presentence hearing to consider his claim that his prior conviction had been unconstitutionally obtained through ineffective assistance of counsel (see, CPL 400.21 [5], [7] [b]; People v Chestnut, 188 AD2d 480, 481 ; People v Cruz, 176 AD2d 953, 953-954 ; People v King, 88 AD2d 938, 939 ; People v Fraser, 54 AD2d 965 ).

1994We agree with the defendant’s contention that he was improperly sentenced as a second felony offender because the court denied his request for a presentence hearing to consider his claim that his prior conviction had been unconstitutionally obtained through ineffective assistance of counsel (see, CPL 400.21 [5], [7] [b]; People v Chestnut, 188 AD2d 480, 481 ; People v Cruz, 176 AD2d 953, 953-954 ; People v King, 88 AD2d 938, 939 ; People v Fraser, 54 AD2d 965 ).

1994We agree with the defendant’s contention that he was improperly sentenced as a second felony offender because the court denied his request for a presentence hearing to consider his claim that his prior conviction had been unconstitutionally obtained through ineffective assistance of counsel (see, CPL 400.21 [5], [7] [b]; People v Chestnut, 188 AD2d 480, 481 ; People v Cruz, 176 AD2d 953, 953-954 ; People v King, 88 AD2d 938, 939 ; People v Fraser, 54 AD2d 965 ).

1994We agree with the defendant’s contention that he was improperly sentenced as a second felony offender because the court denied his request for a presentence hearing to consider his claim that his prior conviction had been unconstitutionally obtained through ineffective assistance of counsel (see, CPL 400.21 [5], [7] [b]; People v Chestnut, 188 AD2d 480, 481 ; People v Cruz, 176 AD2d 953, 953-954 ; People v King, 88 AD2d 938, 939 ; People v Fraser, 54 AD2d 965 ).

1988Although the two deaths may be said to have arisen from one incident involving a continuous course of action, the evidence adduced at a presentence hearing indicates that separate acts caused the deaths of the two victims and neither of these offenses was a material element of the other (see, Penal Law §70.25 [2]; People v Truesdell, 70 NY2d 809, 811 ; People v Brathwaite, 63 NY2d 839, 843 , on remand 106 AD2d 509 ).

1988While we do not approve of County Court’s statement to the press prior to sentencing (see, People v Glendenning, 127 Misc 2d 880 ; Code of Judicial Conduct Canon- 3 [A] [6] [a Judge should abstain from public comment about a pending or impending proceeding]), by not raising this issue prior to sentencing defendant failed to preserve this argument for our review (see, People v Martin, 50 NY2d 1029 ).

1988Although the two deaths may be said to have arisen from one incident involving a continuous course of action, the evidence adduced at a presentence hearing indicates that separate acts caused the deaths of the two victims and neither of these offenses was a material element of the other (see, Penal Law §70.25 [2]; People v Truesdell, 70 NY2d 809, 811 ; People v Brathwaite, 63 NY2d 839, 843 , on remand 106 AD2d 509 ).

1988While we do not approve of County Court’s statement to the press prior to sentencing (see, People v Glendenning, 127 Misc 2d 880 ; Code of Judicial Conduct Canon- 3 [A] [6] [a Judge should abstain from public comment about a pending or impending proceeding]), by not raising this issue prior to sentencing defendant failed to preserve this argument for our review (see, People v Martin, 50 NY2d 1029 ).

1988Although the two deaths may be said to have arisen from one incident involving a continuous course of action, the evidence adduced at a presentence hearing indicates that separate acts caused the deaths of the two victims and neither of these offenses was a material element of the other (see, Penal Law §70.25 [2]; People v Truesdell, 70 NY2d 809, 811 ; People v Brathwaite, 63 NY2d 839, 843 , on remand 106 AD2d 509 ).

1988As the People correctly concede, if the evidence showed that the firing of a single shot caused the deaths of both victims then the imposition of consecutive sentences would be unlawful (see, People v Brathwaite, supra).

1985Further, it is apparent that the traditional purposes for sentencing (see People v Golden, 41 AD2d 242, 244 ) would not be served by sentencing this defendant to an indeterminate term of imprisonment. 5 Indeed, testimony at the presentence hearing, in- eluding that of an official in charge of placing adolescent offenders, indicated that a prison sentence for this defendant would not only be counterproductive, but would be physically and emotionally dangerous to her as well.

1982We thus conclude that the sentence imposed in 1969 was within the power and jurisdiction of the court and should not now be disturbed (see People v Hutchings, 46 AD2d 81, 83 ).