The People of the State of New York, Respondent, v. Kathleen Brown, Appellant

The People of the State of New York, Respondent, v Kathleen Brown, Appellant. [MAJORITY] —Appeal by defendant from a judgment of the Supreme Court, Queens County (Friedmann, J.), rendered July 12, 1989, convicting her of murder in the second degree (two counts), attempted robbery in the first degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing her to consecutive indeterminate terms of imprisonment of 25 years to life on the two counts of murder in the second degree, and concurrent indeterminate terms of imprisonment of 5 to 15 years on the two counts of attempted robbery in the first degree and criminal possession of a weapon in the second degree, to be served concurrently to the murder counts. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the terms of imprisonment imposed on the convictions of murder in the second degree shall run concurrently with each other and with the other terms of imprisonment; as so modified, the judgment is affirmed. Contrary to the defendant’s contention, the trial court properly denied her request to charge the jury on the affirmative defense to felony murder under Penal Law § 125.25 (3). The record demonstrates that the defendant knew that her companions were armed with weapons and intended to commit a robbery of a store. Accordingly, the requirements of Penal Law § 125.25 (3) (c) and (d) were not met (see, People v DiNicolantonio, 74 NY2d 856; People v Pagan, 130 AD2d 687; People v Pearson, 118 AD2d 737). However, under the circumstances, the sentence imposed was excessive to the extent indicated. Kooper, J. P., Sullivan, Lawrence and Rosenblatt, JJ., concur.