Opinion
1999-02287
Submitted October 22, 2002.
November 12, 2002.
Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered January 4, 1999, convicting him of assault in the second degree and criminal trespass in the second degree (two counts), upon a jury verdict, and imposing sentence.
Judith Levin, Washingtonville, N.Y., for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (Daniel M. Reback of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal trespass in the second degree under the second count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was convicted, inter alia, of two counts of criminal trespass in the second degree as lesser-included offenses of two counts of burglary in the first degree, based on conduct which constituted a single act. As argued by the defendant, and correctly conceded by the People, one of the defendant's convictions of criminal trespass in the second degree must be vacated and the sentence imposed for that conviction vacated because the constitutional guarantee against double jeopardy, inter alia, protects a criminal defendant "against multiple punishments for the same offense" (North Carolina v. Pearce, 395 U.S. 711, 717; see United States v. DiFrancesco, 449 U.S. 117, 129; People v. Sailor, 65 N.Y.2d 224, 229, cert denied 474 U.S. 982). Here, the defendant's conviction on the first count of criminal trespass in the second degree was based on the same conduct as the conviction on the first count of criminal trespass in the second degree (see Matter of Auer v. Smith, 77 A.D.2d 172, 181-182).
PRUDENTI, P.J., ALTMAN, FRIEDMANN and RIVERA, JJ., concur.