| People v Munoz |
| 2008 NY Slip Op 03339 [50 AD3d 1316] |
| April 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jose J. Munoz,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered March 20, 2007, convicting defendant upon his plea of guilty of three counts of thecrime of assault in the second degree.
Defendant was charged in a 20-count indictment with crimes arising from various allegedheinous acts perpetrated upon three young children. As is relevant to this appeal, defendant'sconduct included intentionally putting a caustic substance on a four-year-old girl's face causingdisfigurement and impairment of her vision (count 10), fracturing the girl's right humerus whentwisting her arm behind her back and pushing her into a corner for punishment (count 12), andinflicting cigarette burns on the arm of an eight-year-old boy (count 18). A plea was negotiated inwhich defendant pleaded guilty to counts 10, 12 and 18 in full satisfaction of all charges and hereceived an agreed-upon prison sentence of seven years each on counts 10 and 12, and three yearson count 18, all to run consecutively. Defendant now appeals arguing that County Court erred inimposing consecutive sentences on counts 10 and 12.
Initially, we agree with defendant that his waiver of the right to appeal does not precludeconsideration of his challenge to the legality of his sentence since that issue survives despite hiswaiver (see People v Seaberg, 74 NY2d 1, 9 [1989]; People v Carpenter, 19 AD3d 730, 731[*2][2005], lv denied 5 NY3d 804 [2005]). However,defendant's underlying challenge to the sentence is unavailing. The record sufficiently establishesthat the crimes to which he pleaded were "separate and distinct offenses committed by separateand distinct acts" (People v Goodband, 291 AD2d 584, 585 [2002]; see People vBrown, 80 NY2d 361, 363-364 [1992]; cf. People v Dean, 8 NY3d 929, 930-931 [2007]). Accordingly,consecutive sentences were proper for these counts.
Cardona, P.J., Carpinello, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgmentis affirmed.