| People v Stein |
| 2018 NY Slip Op 03566 [161 AD3d 1389] |
| May 17, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jacob Stein, Appellant. |
Cliff Gordon, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello, for respondent.
Aarons, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered March 21, 2016, convicting defendant upon his plea of guilty of the crimes of grandlarceny in the second degree, scheme to defraud in the first degree and possession of a sexualperformance by a child (three counts).
In satisfaction of a 214-count indictment, defendant pleaded guilty to three counts ofpossession of a sexual performance by a child and waived his right to appeal. In addition,defendant pleaded guilty to a superior court information charging him with grand larceny in thesecond degree and scheme to defraud in the first degree, again waiving his right to appeal bothorally and in writing. Defendant was sentenced to prison terms of 1 to 3 years on his convictionsof possession of a sexual performance by a child under counts 1 and 2 of the indictment and1
The People concede, and our review of the record confirms, that the imposition ofconsecutive sentences for possession of a sexual performance by a child convictions were not[*2]authorized because his conduct amounted to a single criminalact.[FN*] "It is well settledthat sentences are authorized to be imposed consecutively if multiple offenses are committedthrough separate and distinct acts, even though they may be part of a single transaction"(People v Smith, 58 AD3d 888, 888-889 [2009] [internal quotation marks and citationomitted]). To justify consecutive sentences in this context, the People were required to establish,either through the indictment or the facts adduced during the allocution, that defendant came intopossession of the images at separate and distinct times (see id. at 889). Here, the counts inthe indictment to which defendant pleaded guilty contained identical language as to the time, dateand place of possession. Inasmuch as neither the indictment nor the facts adduced during theallocution establish that the digital images came into defendant's possession at separate anddistinct times, consecutive sentences were not authorized (see People v Dean, 8 NY3d 929, 930-931 [2007]; People vSmith, 58 AD3d at 889).
We are unpersuaded by defendant's contention that his waiver of the right toappeal—in connection with his plea to the charges in the superior courtinformation—is invalid. Defendant acknowledged that he understood the separate anddistinct nature of the waiver of the right to appeal and had no questions with regard thereto.Further, defendant executed a written waiver of the right to appeal in open court, after reviewingit with his counsel and confirming his understanding thereof. As such, defendant's waiver of theright to appeal was knowing, voluntary and intelligent (see People v Bryant, 28 NY3d 1094, 1094-1095 [2016]; People v McCarthy, 159 AD3d1189, 1190 [2018]). Accordingly, defendant's harsh and excessive challenge to his sentencefor the grand larceny conviction is precluded by the valid appeal waiver (see People vMcCarthy, 159 AD3d at 1190; People v Brown, 156 AD3d 1248, 1249 [2017], lv denied31 NY3d 981 [2018]).
Garry, P.J., McCarthy, Devine and Pritzker, JJ., concur. Ordered that the judgment ismodified, on the law, by directing that defendant's sentences for possession of a sexualperformance by a child under counts 1, 2 and 3 of the indictment shall run concurrently to eachother, and, as so modified, affirmed.
Footnote *:We note that a challenge to thelegality of the sentence is not precluded by the applicable waiver of the right to appeal (see People v Baxter, 157 AD3d1061, 1062 [2018]).