| People v Quirk |
| 2010 NY Slip Op 04421 [73 AD3d 1089] |
| May 18, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darryl T. Quirk, Appellant. |
—[*1]
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.),rendered January 13, 2009, convicting him of assault in the third degree and unlawfulimprisonment in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
As the People correctly concede, the defendant's contention that consecutive sentences wereimproperly imposed is outside the ambit of the defendant's valid appeal waiver (see People v Lopez, 6 NY3d 248,255 [2006]; People v Callahan, 80 NY2d 273, 280 [1992]; People vFrancabandera, 33 NY2d 429, 434 n 2 [1974]).
The People may establish the legality of consecutive sentences by showing that the "acts oromissions" committed by the defendant were separate and distinct acts (People vLaureano, 87 NY2d 640, 643 [1996] [internal quotation marks omitted]; see People vBrown, 80 NY2d 361, 364 [1992]; People v Truesdell, 70 NY2d 809, 811 [1987];People v Brathwaite, 63 NY2d 839, 843 [1984]). Where, as here, the defendant isconvicted upon a plea to a lesser offense than that charged in the indictment, the People may relyonly on those facts admitted during the plea allocution (see People v Laureano, 87 NY2dat 644; People v Griffin, 7 NY2d 511, 515 [1960]).
Here, the defendant pleaded guilty, inter alia, to the crime of assault in the third degree(see Penal Law § 120.00 [2]). For this crime, the defendant allocuted that, on thenight in question, he recklessly assaulted the complainant in his bedroom by pushing her. Thisact caused the complainant to fall to the ground and strike something, thereby sustainingphysical injury. The defendant also pleaded guilty to unlawful imprisonment in the seconddegree (see Penal Law § 135.05). For this crime, the defendant allocuted that, onthe same night, he restrained the complainant for a period of time in his house, without herconsent. Thus, although the subject acts providing the basis for these convictions occurred atapproximately the same time and involved the same complainant, they constituted two separateand distinct acts (see People v Johnson, 243 AD2d 997, 999 [1997]). Therefore, theimposition of consecutive sentences was proper (see People v Laureano, 87 NY2d at643; People v Brown, 80 NY2d at 364; People v [*2]Truesdell, 70 NY2d at 811; People v Brathwaite, 63NY2d at 843).
Accordingly, contrary to the defendant's contention, his counsel was not ineffective forfailing to object to the imposition of consecutive sentences (see generally People v Baldi,54 NY2d 137, 146-147 [1981]). Covello, J.P., Florio, Miller and Eng, JJ., concur.