Opinion
108649
06-21-2018
The PEOPLE of the State of New York, Respondent, v. Resean BLOUNT, Appellant.
Mitchell S. Kessler, Cohoes, for appellant. P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Mitchell S. Kessler, Cohoes, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal, by permission, from an order of the County Court of Albany County (Herrick, J.), rendered July 12, 2016, which denied defendant's motion pursuant to CPL 440.20 to set aside his sentence, without a hearing.
In 2012, defendant was convicted, as pertinent here, of eight counts of criminal possession of a forged instrument in the second degree for his participation in a forgery scheme with a codefendant. Defendant was thereafter sentenced to prison terms of 3 to 6 years on each count, one of which was to run consecutively to the remaining seven, which were to run concurrently with each other. After this Court affirmed defendant's conviction upon appeal ( 129 A.D.3d 1303, 12 N.Y.S.3d 331 [2015] ), he filed a pro se motion pursuant to CPL 440.20 arguing that the sentences on his convictions of criminal possession of a forged instrument in the second degree violated Penal Law § 70.25(2). County Court denied the motion without a hearing and defendant, by permission, appeals.
Defendant's sole contention upon appeal is that County Court was required to impose concurrent sentences on each of his convictions of criminal possession of a forged instrument in the second degree. Sentences on multiple convictions must run concurrently where the "offenses [are] committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other" ( Penal Law § 70.25[2] ). However, "even if the statutory elements of multiple offenses overlap, sentences may be imposed to run consecutively when multiple offenses are committed through separate and distinct acts, though they are part of a single transaction" ( People v. Ramirez , 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722 [1996] ; accord People v. McKnight, 16 N.Y.3d 43, 47–48, 917 N.Y.S.2d 594, 942 N.E.2d 1019 [2010] ; see People v. Velazquez , 125 A.D.3d 1063, 1064, 3 N.Y.S.3d 193 [2015], lv denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015] ). Contrary to defendant's contentions, "[t]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent" ( People v. Day , 73 N.Y.2d 208, 212, 538 N.Y.S.2d 785, 535 N.E.2d 1325 [1989] [internal quotation marks and citations omitted] ). A court is not required to impose the same prison term on multiple convictions and "may, as here, separate the prison terms into groups, with the terms to be served concurrently within the group and consecutively to one or more other groups" ( People v. Morrison , 290 A.D.2d 808, 809, 736 N.Y.S.2d 204 [2002], lv denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615 [2002] ).
Here, the evidence adduced at trial established that seven of defendant's eight convictions of criminal possession of a forged instrument in the second degree arose from his possession of credit card receipts dated January 24, 2011. These receipts revealed that defendant had used the credit card of a California resident to make various purchases. The sentences on these convictions were imposed to run concurrently with each other. The remaining conviction arose from defendant's possession, on January 25, 2011, of a forged debit/gift card that had been encoded with a separate debit/credit card number, involving a different victim. As this conviction was thus based upon separate and distinct acts by defendant, we find no error in County Court's direction for the corresponding sentence to run consecutively to the others (see Penal Law § 70.25[2] ; People v. Ruddy , 135 A.D.3d 1241, 1242, 23 N.Y.S.3d 483 [2016], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016] ; People v. Rodney , 79 A.D.3d 1363, 1365, 912 N.Y.S.2d 340 [2010], lv denied 19 N.Y.3d 1105, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012] ).
ORDERED that the order is affirmed.
Egan Jr., Clark, Mulvey and Rumsey, JJ., concur.