Opinion
107143
07-02-2015
The PEOPLE of the State of New York, Respondent, v. John HOWLAND, Appellant.
Denis J. McClure, Kingston, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Denis J. McClure, Kingston, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY and DEVINE, JJ.
Opinion
PETERS, P.J.Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered September 27, 2013, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree (two counts).
In satisfaction of a 19–count indictment, defendant pleaded guilty to two counts of criminal contempt in the first degree and waived his right to appeal. He was sentenced in accordance with the plea agreement to consecutive prison terms of 1 ½ to 3 years. Defendant now appeals.
Initially, we note that defendant's challenge to the legality of his consecutively imposed sentences survives his guilty plea and waiver of the right to appeal (see People v. Lamica, 95 A.D.3d 1565, 1565, 944 N.Y.S.2d 792 [2012] ). Nevertheless, we find this contention to be without merit. Consecutive sentences may be imposed “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] [internal quotation marks and citation omitted]; see People v. Lynch, 291 A.D.2d 582, 583, 738 N.Y.S.2d 116 [2002] ). Here, although the counts upon which defendant was convicted contain identical language and the dates of the offenses are the same, the facts adduced at the allocution establish that defendant telephoned the victim and left threatening voice mail messages more than once on the same day. As such, the record establishes that defendant's convictions consisted of separate and distinct acts and, therefore, we find no error in County Court's imposition of consecutive sentences (see People v. Moon, 119 A.D.3d 1293, 1294–1295, 990 N.Y.S.2d 98 [2014], lv. denied 24 N.Y.3d 1004, 997 N.Y.S.2d 122, 21 N.E.3d 574 [2014] ; People v. Cortese, 79 A.D.3d 1281, 1285, 913 N.Y.S.2d 383 [2010], lv. denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011] ; People v. Williams, 51 A.D.3d 1141, 1145, 856 N.Y.S.2d 743 [2008], lvs. denied 10 N.Y.3d 959, 965, 863 N.Y.S.2d 143, 149, 893 N.E.2d 449, 455 [2008] ; People v. Grady, 40 A.D.3d 1368, 1375, 838 N.Y.S.2d 207 [2007], lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 [2007] ). Defendant's remaining contentions, to the extent that they are not foreclosed by his valid waiver of appeal, are not preserved for our review as there is no indication in the record that defendant made a postallocution motion to withdraw his plea of guilty (see People v. Smalls, 126 A.D.3d 1240, 1240, 3 N.Y.S.3d 649 [2015] ; People v. Martin, 125 A.D.3d 1054, 1054, 3 N.Y.S.3d 187 [2015] ).
ORDERED that the judgment is affirmed.
LAHTINEN, GARRY and DEVINE, JJ., concur.