| People v Moon |
| 2014 NY Slip Op 05576 [119 AD3d 1293] |
| July 31, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vEric Moon, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Stein, J.P. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered June 20, 2012, convicting defendant upon his plea of guilty of the crime ofassault in the second degree (two counts).
Defendant was charged in an indictment with two counts of assault in the first degreeand two counts of assault in the second degree, arising from an incident in July 2011during which his codefendants shot into a crowd with a shotgun and a rifle and seriouslyinjured two people. Thereafter, defendant pleaded guilty to both counts of assault in thesecond degree in exchange for a prison term of six years followed by five years ofpostrelease supervision on each count, to be served consecutively, and waived his right toappeal. Prior to sentencing, defendant moved to withdraw his plea. That motion wasdenied, and County Court thereafter sentenced defendant, as a second felony offender, tothe agreed-upon term. Defendant now appeals.
We affirm. To the extent that defendant contends that the indictment wasjurisdictionally defective, we note that an indictment will be found defective when it failsto charge the defendant with the commission of a particular crime. However, "[w]here anindictment count incorporates by reference the statutory provision applicable to the crimeintended to be charged, it has been repeatedly held that this is sufficient to apprise thedefendant of the charge and, therefore, renders the count jurisdictionally valid"(People v Cruz, 104 AD3d [*2]1022, 1023 [2013][internal quotation marks and citations omitted]). Here, the counts of the indictment towhich defendant pleaded recite, among other things, the specific section of the PenalLaw under which defendant was charged and, accordingly, the indictment was notjurisdictionally defective (see People v Cruz, 104 AD3d at 1023-1024; People v Brown, 75 AD3d655, 656 [2010]). Further, defendant's challenge to the factual sufficiency of theindictment, which amounts to a nonjurisdictional defect, is foreclosed by his guilty plea(see People v Olmstead, 111AD3d 1063, 1064 [2013]; People v Cruz, 104 AD3d at 1024).
Lastly, we reject defendant's contention that the imposition of consecutive sentenceswas illegal. Pursuant to Penal Law § 70.25 (2), sentences must runconcurrently for two or more offenses committed through a single act or omission.However, consecutive sentences may be imposed when " 'the acts involved,though part of a continuous course of conduct, can be separated into separate and distinctevents' " (People vSnyder, 91 AD3d 1206, 1215 [2012], lv denied 19 NY3d 968 [2012],cert denied 568 US &mdash, 133 S Ct 791 [2012], quoting People v Williams, 51 AD3d1141, 1145 [2008], lv denied 10 NY3d 959 [2008]). Here, consideringdefendant's allocution wherein he admitted that multiple shots were fired and the absenceof any contention that the same bullet injured both victims, as well as the fact thatdefendant pleaded guilty with the understanding that the sentences for each assault wouldbe imposed consecutively, County Court did not err in concluding that the shootingsconstituted separate and distinct acts and, thus, in imposing consecutive sentences(see People v Brathwaite, 63 NY2d 839, 842-843 [1984]; People v Holmes, 92 AD3d957 [2012], lv denied 19 NY3d 961 [2012]).
McCarthy, Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.