| People v Shay |
| 2015 NY Slip Op 05847 [130 AD3d 1499] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTimothy A. Shay, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedDecember 9, 2013. The judgment convicted defendant, upon his plea of guilty, ofpossessing an obscene sexual performance by a child and sexual abuse in the seconddegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by directing that the definite sentences shall run concurrently with theindeterminate sentence and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of possessing an obscene sexual performance by a child (Penal Law§ 263.11) and two counts of sexual abuse in the second degree(§ 130.60 [2]). We note at the outset that, as the People correctly concede,defendant did not waive his right to appeal. "[A]lthough a waiver of the right to appealwas initially mentioned during a discussion of the elements of the plea agreement,County Court failed to elicit the waiver from defendant during the plea colloquy"(People v Crane, 294 AD2d 867, 867 [2002], lv denied 98 NY2d 767[2002]).
We reject defendant's contention that the sentence is unduly harsh or severe. Weagree with defendant, however, and the People again correctly concede, that the courterred in directing that the definite sentences imposed on the misdemeanor counts shallrun consecutively to the indeterminate sentence imposed on the felony count (seePenal Law § 70.35). We therefore modify the judgment by directing that thedefinite sentences shall run concurrently with the indeterminate sentence (see Peoplev Leabo, 84 NY2d 952, 953 [1994]; People v Shorter, 6 AD3d 1204, 1205-1206 [2004], lvdenied 3 NY3d 648 [2004]). Present—Centra, J.P., Lindley, Sconiers, Whalenand DeJoseph, JJ.