| People v Denno |
| 2008 NY Slip Op 08564 [56 AD3d 902] |
| November 13, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony A.Denno, Appellant. |
—[*1] Michael P. Langey, District Attorney, Elizabethtown, for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered August 21, 2007, convicting defendant upon his plea of guilty of two counts of thecrime of criminal sexual act in the third degree.
On June 30, 2006, defendant, who was 39 years old, allegedly engaged in sexual conductwith two boys, ages 11 and 13. He subsequently pleaded guilty to two counts of criminal sexualact in the third degree and was sentenced to consecutive prison terms of 1
"[S]entences may be imposed to run consecutively when multiple offenses are committedthrough separate and distinct acts, though they are part of a single transaction" (People vRamirez, 89 NY2d 444, 451 [1996]; see People v Perkins, 27 AD3d 890, 893-894 [2006], lvsdenied 6 NY3d 897 [2006], 7 NY3d 761 [2006]; People v May, 263 AD2d 215, 221[2000], lv denied 94 NY2d 950 [2000]; cf. People v Dean, 8 NY3d 929, 930-931 [2007]). During the pleaallocution, defendant admitted that he placed his mouth on the penis of one [*2]victim. He further acknowledged that, as to the other victim, he puthis penis in the mouth of that child. The plea allocution set forth facts establishing separate anddistinct acts perpetrated upon two victims. Accordingly, consecutive sentences were proper (see People v Lanfair, 18 AD3d1032, 1033-1034 [2005], lv denied 5 NY3d 790 [2005]; see also People v Mendez, 50 AD3d924, 924-925 [2008], lv denied 10 NY3d 962 [2008]).
Defendant did not object to the amount of the reparation, which consisted of air fare fromTexas ($328.11 round trip) and four days lost wages as a waitress. He limited his argument to thecontention that the costs are not a proper reparation. We cannot agree. As the parent of a childvictim, the mother was also a victim under the restitution and reparation statute (seePenal Law § 60.27 [4] [b]; see also Executive Law § 621 [6]). She had anabsolute right, flowing directly from defendant's admitted criminal conduct, to appear andaddress County Court about the effect of the crime on the child (see CPL 380.50 [2] [a][2]; [b]). Penal Law § 60.27 (1) authorizes "reparation for the actual out-of-pocket losscaused [by defendant's offense]." While neither party provided a case from this state directly onpoint, several other jurisdictions have construed their restitution/reparation statutes to include,under some circumstances, similar expenses as County Court awarded here (see e.g. People vLassek, 122 P3d 1029, 1036 [Colo 2005]; State v Doe, 140 Idaho 873, 880, 103 P3d967, 974 [2004]; State v Madrid, 207 Ariz 296, 298-300, 85 P3d 1054, 1056-1058[2004]; United States v Pizzichiello, 272 F3d 1232, 1240-1241 [9th Cir 2001], certdenied 537 US 852 [2002]; In re Welfare of J.A.D., 603 NW2d 844, 847 [Minn1999]). Significantly, New York has a "long-standing policy of promoting, encouraging andfacilitating the use of restitution to reimburse victims for monetary and other losses caused bycriminal conduct" (People v Horne, 97 NY2d 404, 412 [2002]). The modest reparationdirected here was consistent with this long-standing policy. The mother, both as a victim herselfand more importantly to exercise her statutory right to speak to the court on behalf of the childvictim, incurred actual costs directly caused by defendant's criminal conduct. Under thesecircumstances, we are unpersuaded that County Court improvidently exercised its discretion inordering the payment (see People v Contes, 289 AD2d 128, 129 [2001]).
Cardona, P.J., Mercure, Spain and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.