Opinion
2014-01-30
The PEOPLE of the State of New York, Respondent, v. Ross E. PARDY, Appellant.
G. Scott Walling, Pembroke Pines, Florida, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
G. Scott Walling, Pembroke Pines, Florida, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, McCARTHY and EGAN JR., JJ.
McCARTHY, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered November 18, 2011, convicting defendant upon his plea of guilty of the crime of possession of a sexual performance by a child (two counts).
Defendant waived indictment and pleaded guilty to a superior court information charging him with two counts of possession of a sexual performance by a child. Pursuant to the plea agreement, defendant was sentenced to two consecutive prison terms of 1 to 3 years. Defendant appeals.
Defendant maintains that his sentence is illegal in that consecutive prison terms were not authorized in the absence of proof concerning when he downloaded the subject images to his computer. We agree. Consecutive sentences are authorized when “ ‘the facts demonstrate that the defendant's acts underlying the crimes are separate and distinct’ ” (People v. Dean, 8 N.Y.3d 929, 930–931, 834 N.Y.S.2d 704, 866 N.E.2d 1032 [2007], quoting People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722 [1996] ). The determination as to whether defendant committed separate and distinct acts of possession turns upon when the images came into his possession ( see People v. Dean, 8 N.Y.3d at 930–931, 834 N.Y.S.2d 704, 866 N.E.2d 1032; People v. Smith, 58 A.D.3d 888, 889, 871 N.Y.S.2d 452 [2009]; People v. Lynch, 291 A.D.2d 582, 583, 738 N.Y.S.2d 116 [2002] ). While the accusatory instrument and defendant's plea allocution each specified the date and time upon which the images were retrieved from defendant's computer, there was no information regarding defendant's act of downloading the images. Accordingly, consecutive sentences were not authorized in the absence of such information ( see id.).
ORDERED that the judgment is modified, on the law, by directing that defendant's sentences shall run concurrently rather than consecutively, and, as so modified, affirmed. LAHTINEN, J.P., STEIN and EGAN JR., JJ., concur.