| People v Lamica |
| 2012 NY Slip Op 04041 [95 AD3d 1565] |
| May 24, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vHoward G. Lamica, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered June6, 2011, convicting defendant upon his plea of guilty of the crime of sexual abuse in the firstdegree (three counts).
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with various crimes stemming from his sexual contact with two younggirls—one of whom was his then seven-year-old relative. In full satisfaction thereof,defendant pleaded guilty to three counts of sexual abuse in the first degree and waived his rightto appeal all matters except, insofar as is relevant here, those pertaining to sentencing.[FN*]Defendant thereafter was sentenced—in accordance with the parameters set forth in theplea agreement—to consecutive prison terms of six years, together with a $5,000 fine,upon each of the three counts. Defendant now appeals, contending that the consecutive sentenceimposed upon counts 2 and 3 is illegal and, further, that the aggregate prison term (18 years) andfine imposed ($15,000) are harsh and excessive.[*2]
We disagree. Although defendant's challenge to thelegality of his sentence survives both his guilty plea and his limited waiver of the right to appeal(see People v Brennan, 62 AD3d1167, 1168 [2009], lv denied 13 NY3d 794 [2009]), we find it to be lacking in merit.The eight-year-old victim's statement to the police, together with the admissions made bydefendant during the course of the presentence investigation (cf. People v Goodband, 291AD2d 584, 585 [2002]; People v Lockenwitz, 287 AD2d 891, 891 [2001]; People vScandell, 143 AD2d 423, 425 [1988], lv denied 73 NY2d 790 [1988], certdenied 489 US 1080 [1989]), are sufficient to establish that defendant committed "twoseparate and distinct acts" (People v Laureano, 87 NY2d 640, 644 [1996]) against thevictim in question. Accordingly, County Court's imposition of consecutive sentences upon counts2 and 3 was entirely proper.
Finally, under the circumstances presented and given the heinous nature of the crimes atissue, we discern no basis upon which to disturb either the sentence or the fine imposed byCounty Court (see People Brickey, 3 AD3d 603, 604 [2004], lv denied 2 NY3d737 [2004]; People v Oliver, 276 AD2d 930, 931 [2000]).
Lahtinen, J.P., Spain, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgmentis affirmed.
Footnote *: The first count of the superiorcourt information involved conduct committed against defendant's relative; the second and thirdcounts related to the second victim, who was then eight years old.