People v Howland

2015 NY Slip Op 05722 [130 AD3d 1105]

July 2, 2015

Appellate Division, Third Department

As corrected through Wednesday, September 2, 2015

[*1]

The People of the State of New York, Respondent, vJohn Howland, Appellant.

Denis J. McClure, Kingston, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.

Peters, P.J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered September 27, 2013, convicting defendant upon his plea of guilty of thecrime of criminal contempt in the first degree (two counts).

In satisfaction of a 19-count indictment, defendant pleaded guilty to two counts ofcriminal contempt in the first degree and waived his right to appeal. He was sentenced inaccordance with the plea agreement to consecutive prison terms of 11/2 to3 years. Defendant now appeals.

Initially, we note that defendant's challenge to the legality of his consecutivelyimposed sentences survives his guilty plea and waiver of the right to appeal (seePeople v

Lamica

, 95 AD3d 1565, 1565 [2012]). Nevertheless, we find this contention tobe without merit. Consecutive sentences may be imposed "when the facts demonstratethat the defendant's acts underlying the crimes are separate and distinct" (People v Dean, 8 NY3d929, 930-931 [2007] [internal quotation marks and citation omitted]; see Peoplev Lynch, 291 AD2d 582, 583 [2002]). Here, although the counts upon whichdefendant was convicted contain identical language and the dates of the offenses are thesame, the facts adduced at the allocution establish that defendant telephoned the victimand left threatening voice mail messages more than once on the same day. As such, therecord establishes that defendant's convictions consisted of separate and distinct acts and,therefore, we find no error in County Court's imposition of consecutive sentences (see People v Moon, 119 AD3d1293, 1294-1295 [2014], lv denied 24 NY3d 1004 [2014]; People v [*2]Cortese, 79 AD3d 1281, 1285 [2010], lvdenied 16 NY3d 857 [2011]; People v Williams, 51 AD3d 1141, 1145 [2008], lvdenied 10 NY3d 965 [2008]; People v Grady, 40 AD3d 1368, 1375 [2007], lvdenied 9 NY3d 923 [2007]). Defendant's remaining contentions, to the extent thatthey are not foreclosed by his valid waiver of appeal, are not preserved for our review asthere is no indication in the record that defendant made a postallocution motion towithdraw his plea of guilty (seePeople v Smalls, 126 AD3d 1240, 1240 [2015]; People v Martin, 125 AD3d1054, 1054 [2015]).

Lahtinen, Garry and Devine, JJ., concur. Ordered that the judgment is affirmed.