| People v Garcia |
| 2015 NY Slip Op 05518 [129 AD3d 1383] |
| June 25, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vNina C. Garcia, Now Known as Nina Hopkins, Appellant. |
Francisco P. Berry, Ithaca, for appellant.
Mark D. Suben, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered February 21, 2013, upon a verdict convicting defendant of the crimes of grandlarceny in the fourth degree, criminal possession of stolen property in the fourth degree,forgery in the third degree and petit larceny.
Defendant was arrested after she stole a coworker's credit card and used it topurchase items at two retail locations. As a result, defendant was charged in anindictment with various theft-related crimes. Following a jury trial, she was convicted ofgrand larceny in the fourth degree, criminal possession of stolen property in the fourthdegree, forgery in the third degree and petit larceny. Defendant thereafter was sentencedas a second felony offender to consecutive terms of 2 to 4 years in prison on the grandlarceny and criminal possession convictions, and to one year in jail on each of theremaining convictions, to run concurrently. Defendant appeals.
Defendant's sole challenge is to the legality of the sentence. Specifically, shecontends that County Court was required, pursuant to Penal Law § 70.25(2), to direct that the sentences for the crimes of grand larceny in the fourth degree andcriminal possession of stolen property in the fourth degree run concurrently, rather thanconsecutively. We disagree. Penal Law § 70.25 (2) provides that sentencesmust run concurrently, "[w]hen more than one sentence of imprisonment is imposed. . . for two or more offenses committed through a single act or omission, orthrough an act or omission which in itself constituted one of the offenses and also was amaterial element of the other." Here, defendant's act of stealing the credit card constituted[*2]the crime of grand larceny in the fourth degree(see Penal Law § 155.30 [4]), and her act of possessing that creditcard with the intent to benefit herself constituted the crime of criminal possession ofstolen property in the fourth degree (see Penal Law § 165.45 [2];see also People v Morrison, 290 AD2d 808, 809-810 [2002], lv denied 98NY2d 653 [2002]). Under the definitions set forth in the Penal Law, these crimesentailed separate acts. Moreover, inasmuch as the statutory elements of the larcenyoffense are distinct from the possessory offense, one is not a component of the other, nordo the material elements of these offenses overlap (see People v Day, 73 NY2d208, 211-212 [1989]). Therefore, we conclude that County Court was not required byPenal Law § 70.25 (2) to impose concurrent sentences.
Lahtinen, J.P., McCarthy, Egan Jr. and Rose, JJ., concur. Ordered that the judgmentis affirmed.