| People v Pena |
| 2015 NY Slip Op 02563 [126 AD3d 618] |
| March 26, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Michael Pena, Appellant. |
Ephraim Savitt, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), renderedMay 7, 2012, convicting defendant, after a jury trial, of three counts of predatory sexualassault, and three counts of criminal sexual act in the first degree, and sentencing him toan aggregate term of 75 years to life, unanimously affirmed.
The court lawfully imposed consecutive sentences for defendant's three predatorysexual assault convictions. Defendant, an off-duty police officer, threatened to shoot thevictim, and dragged her into an alleyway and a courtyard. There, defendant pointed hisfirearm at the victim's head and committed three criminal sexual acts. As relevant here, aperson is guilty of predatory sexual assault when (1) he or she commits the crime offirst-degree criminal sexual act, and (2) during the commission of that crime, he or sheuses or threatens the immediate use of a dangerous instrument (Penal Law§ 130.95 [1] [b]). Although defendant's convictions on three counts ofpredatory sexual assault involved a single transaction and shared the dangerousinstrument element, consecutive sentences were permissible because the three criminalsexual acts were separate and distinct (see People v Yong Yun Lee, 92 NY2d987, 989 [1998]).
Defendant did not preserve his claim that his aggregate sentence wasunconstitutionally excessive (see People v Ingram, 67 NY2d 897, 899 [1986]),and we decline to review it in the interest of justice. As an alternative holding, we alsoreject it on the merits (see Rummel v Estelle, 445 US 263 [1980]; People vBroadie, 37 NY2d 100 [1975], cert denied 423 US 950 [1975]).
We perceive no basis for reducing the sentence in the interest of justice.Concur—Gonzalez, P.J., Acosta, Moskowitz, Richter and Feinman, JJ.