Opinion
663 KA 19-01119
10-02-2020
The PEOPLE of the State of New York, Respondent, v. Fahrudin OMEROVIC, Defendant-Appellant.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of making a terroristic threat ( Penal Law § 490.20 [1] ). Although defendant was not required to preserve his contention that County Court imposed illegal consecutive sentences (see People v. Houston , 142 A.D.3d 1397, 1399, 38 N.Y.S.3d 368 [4th Dept. 2016], lv denied 28 N.Y.3d 1146, 52 N.Y.S.3d 297, 74 N.E.3d 682 [2017] ), he was required, and failed, to preserve his related contention that the indictment is multiplicitous (see People v. Kobza , 66 A.D.3d 1387, 1388, 886 N.Y.S.2d 265 [4th Dept. 2009], lv denied 13 N.Y.3d 939, 895 N.Y.S.2d 330, 922 N.E.2d 919 [2010] ). In any event, both contentions lack merit. An indictment is considered multiplicitous when a single offense is charged in more than one count (see People v. Alonzo , 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ; People v. Sprague , 151 A.D.3d 1921, 1922-1923, 59 N.Y.S.3d 221 [4th Dept. 2017], lv denied 30 N.Y.3d 1023, 70 N.Y.S.3d 455, 93 N.E.3d 1219 [2017] ). Here, inasmuch as the events underlying the two counts occurred at distinct times on different days and as separate transactions, they did not constitute a " ‘single, uninterrupted occurrence’ " ( Alonzo , 16 N.Y.3d at 270, 920 N.Y.S.2d 302, 945 N.E.2d 495 ; see generally People v. Moffitt , 20 A.D.3d 687, 690-691, 798 N.Y.S.2d 556 [3d Dept. 2005], lv denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143 [2005] ), and thus the indictment was not multiplicitous. Further, because the acts underlying the crimes were separate and distinct, the imposition of consecutive sentences was permissible (see People v. Fuentes , 52 A.D.3d 1297, 1301, 859 N.Y.S.2d 841 [4th Dept. 2008], lv denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008] ).
Finally, the sentence is not unduly harsh or severe.