People v Pardy

People v Pardy 2014 NY Slip Op 00547 Decided on January 30, 2014 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 30, 2014
105529

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

ROSS E. PARDY, Appellant.

Calendar Date: January 10, 2014
Before: Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ.


G. Scott Walling, Pembroke Pines, Florida, for
appellant.
J. Anthony Jordan, District Attorney, Fort Edward
(Katherine G. Henley of counsel), for respondent.

MEMORANDUM AND ORDER


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 NY3d 929, 930-931 [2007], quoting People v Ramirez, 89 NY2d 444, 451 [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 NY3d at 930-931; People v Smith, 58 AD3d 888, 889 [2009]; People v Lynch, 291 AD2d 582, 583 [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 [*2]defendant's act of downloading the images. Accordingly, consecutive sentences were not authorized in the absence of such information (see id.).

Lahtinen, J.P., Stein and Egan Jr., JJ., concur.

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.