People v. Garcia, 105768
| Decision Date | 25 June 2015 |
| Docket Number | 105768 |
| Citation | 12 N.Y.S.3d 350,129 A.D.3d 1383,2015 N.Y. Slip Op. 05518 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Nina C. GARCIA, Now Known as Nina Hopkins, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Francisco P. Berry, Ithaca, for appellant.
Mark D. Suben, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, EGAN JR. and ROSE, JJ.
Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered February 21, 2013, upon a verdict convicting defendant of the crimes of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, forgery in the third degree and petit larceny.
Defendant was arrested after she stole a coworker's credit card and used it to purchase items at two retail locations. As a result, defendant was charged in an indictment with various theft-related crimes. Following a jury trial, she was convicted of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, forgery in the third degree and petit larceny. Defendant thereafter was sentenced as a second felony offender to consecutive terms of 2 to 4 years in prison on the grand larceny and criminal possession convictions, and to one year in jail on each of the remaining convictions, to run concurrently. Defendant appeals.
Defendant's sole challenge is to the legality of the sentence. Specifically, she contends that County Court was required, pursuant to Penal Law § 70.25(2), to direct that the sentences for the crimes of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree run concurrently, rather than consecutively. We disagree. Penal Law § 70.25(2) provides that sentences must run concurrently, “[w]hen more than one sentence of imprisonment is imposed ... for two or more offenses 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.” Here, defendant's act of stealing the credit card constituted the crime of grand larceny in the fourth degree (see Penal Law § 155.30[4] ), and her act of possessing that credit card with the intent to benefit herself constituted the crime of criminal possession of stolen property in the fourth degree (see Penal Law § 165.45[2] ; see also
People v. Morrison, 290 A.D.2d 808, 809–810, 736 N.Y.S.2d 204 [2002], ...
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People v. Henry, 109584
...of larceny and possession are distinct and the acts of stealing and possessing property are separate acts (see People v. Garcia, 129 A.D.3d 1383, 1384, 12 N.Y.S.3d 350 [2015] ). Defendant's remaining arguments have been considered and found to lack merit. Egan Jr., J.P., Lynch, Devine and A......
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