Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered October 15, 2008, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree, robbery in the first degree (two counts), and robbery in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 40 years, modified, on the law, to the extent of directing that the sentences for the attempted murder and assault convictions be served concurrently, the matter remanded to the trial court for resentencing, and otherwise affirmed.
Defendant’s challenges to the People’s summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we also find that the challenged portions of the summation constituted permissible comment (see generally People v Overlee, 236 AD2d 133 [1997], Iv denied 91 NY2d 976 [1998]) on the victim’s demeanor when he entered the courtroom and saw defendant. The prosecutor specifically called on the jurors to rely on their own observations of the victim’s demeanor. Defendant’s related ineffective assistance of counsel claim is without merit.
As the People concede, the court should have imposed concurrent sentences for the attempted murder and assault convictions because there is no basis for finding that these crimes were committed through separate acts. “[Sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (People v Laureano, 87 NY2d 640, 643 [1996]; see Penal Law *645§ 70.25 [2]). In this case, the facts do not support any conclusion other than that the crimes of assault and attempted murder were effected through the same acts.
Nevertheless, we remand the matter to the trial court so that it may restructure the sentences to arrive lawfully at the aggregate sentence which it clearly intended to impose upon defendant, who was the actual shooter, and thus deserving of greater punishment than his accomplices. One of the two robbery counts of which defendant was convicted charged him with forcible stealing of property while displaying a firearm (Penal Law § 160.15 [4]). It is self-evident that defendant’s display of a gun during the robbery, on the one hand, and his actual shooting of the victim, on the other, arise from separate acts, and are thus not subject to the strictures of Penal Law § 70.25 (2).
This Court has, on at least one prior occasion, vacated illegal consecutive sentences, but remanded the case for resentencing, so that sentences on other counts which were initially run concurrently, could be imposed consecutively so as to reflect the court’s intended sentencing scheme (see People v Montel, 269 AD2d 293, 294 [2000], Iv denied 95 NY2d 800 [2000]). Defendant contends that Montel is inapplicable because the convictions resulted from a negotiated plea. This distinction is meaningless. As the Court of Appeals has observed, when illegal sentences are corrected, and a defendant resentenced in accordance with statutory prescriptions, a colorable argument only arises if his “sentence had been increased beyond his legitimate expectations of what the final sentence should be” (People v Williams, 87 NY2d 1014, 1015 [1996]). As long as defendant’s aggregate sentence in this case is not increased beyond what the court originally intended to impose, he will face no jeopardy from having taken an appeal.
To the extent the Second Department’s decision in People v Romain (288 AD2d 242 [2001], Iv denied 98 NY2d 640 [2002]) suggests that.a different result is warranted, we decline to follow its reasoning.
Nor are this Court’s decisions in People v Rosado (28 AD3d 215 [2006]) and People v Davis (12 AD3d 237 [2004], appeal withdrawn 4 NY3d 762 [2005]) inconsistent with the result reached herein. In both of those cases the People sought resentencing to adjust the individual sentences themselves so that the aggregate sentence need not be reduced, which procedure would run afoul of CPL 430.10 (“when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has com*646menced”). In this case, the People seek resentencing only to realign which sentences are to run consecutively, not to disturb any of the individual sentences. Concur — Nardelli, J.E, Acosta, Freedman and Román, JJ.