In People v Laureno (87 NY2d 640 ) the Court of Appeals explained that
In determining whether concurrent sentences are required, ... the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required (citations omitted). If the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the “acts or omissions” committed by defendant were separate and distinct acts (citations omitted).
Thus, counsel should be alert to arguments that different counts actually involved a single actus reus. Such a claim was successful in People v Mitchell (2010 NY Slip Op 06926 [4th Dept 10/01/10]) in which the Court held that
The evidence at trial established only that defendant constructively possessed the firearms with respect to the criminal possession of a weapon counts of which he was convicted, and thus the People proved only a single actus reus (see People v Laureano, 87 NY2d 640, 643; People v Hunt, 52 AD3d 1312, lv denied 11 NY3d 737; People v Rogers, 111 AD2d 665, lv denied 66 NY2d 614, 617). Further, the actus reus of the counts of criminal possession of a weapon is a material element of the offense of unlawful wearing of a body vest (see generally Laureano, 87 NY2d at 643). Thus, that sentence must also run concurrently with the sentences imposed on the criminal possession of a weapon counts.