| People v Pardy |
| 2014 NY Slip Op 00547 [113 AD3d 1003] |
| January 30, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RossE. Pardy, Appellant. |
—[*1] J. Anthony Jordan, District Attorney, Fort Edward (Katherine G. Henley of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered November 18, 2011, convicting defendant upon his plea ofguilty of the crime of possession of a sexual performance by a child (two counts).
Defendant waived indictment and pleaded guilty to a superior court informationcharging him with two counts of possession of a sexual performance by a child. Pursuantto the plea agreement, defendant was sentenced to two consecutive prison terms of 1 to 3years. Defendant appeals.
Defendant maintains that his sentence is illegal in that consecutive prison terms werenot authorized in the absence of proof concerning when he downloaded the subjectimages to his computer. We agree. Consecutive sentences are authorized when " 'thefacts demonstrate that the defendant's acts underlying the crimes are separate and distinct'" (People v Dean, 8 NY3d929, 930-931 [2007], quoting People v Ramirez, 89 NY2d 444, 451 [1996]).The determination as to whether defendant committed separate and distinct acts ofpossession turns upon when the images came into his possession (see People vDean, 8 NY3d at 930-931; People v Smith, 58 AD3d 888, 889 [2009];People v Lynch, 291 AD2d 582, 583 [2002]). While the accusatory instrumentand defendant's plea allocution each specified the date and time upon which the imageswere retrieved from defendant's computer, there was no information regarding [*2]defendant's act of downloading the images. Accordingly,consecutive sentences were not authorized in the absence of such information (seeid.).
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is modified,on the law, by directing that defendant's sentences shall run concurrently rather thanconsecutively, and, as so modified, affirmed.