People v. Howland

• Decision Date: 02 July 2015
• Docket Number: 107143
• Parties: The PEOPLE of the State of New York, Respondent, v. John HOWLAND, Appellant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1105
13 N.Y.S.3d 613
2015 N.Y. Slip Op. 05722

The PEOPLE of the State of New York, Respondent
v.
John HOWLAND, Appellant.

107143

Supreme Court, Appellate Division, Third Department, New York.

July 2, 2015.

13 N.Y.S.3d 614

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.

130 A.D.3d 1105

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...