Opinion
2011-12-30
The PEOPLE of the State of New York, Respondent, v. Jonathan J. MEEK, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [former (a) ] ) and three counts of sodomy in the first degree (former § 130.50[3] ). Defendant contends that Supreme Court erred in denying his motions to sever the counts charging possessing a sexual performance by a child from the other counts of the indictment. We conclude that any such error is harmless inasmuch as the evidence of defendant's guilt was overwhelming and there was no significant probability that defendant would have been acquitted of the counts in question but for the alleged error ( see People v. Serrano, 74 A.D.3d 1104, 1107, 904 N.Y.S.2d 711, lv. denied 15 N.Y.3d 895, 912 N.Y.S.2d 584, 938 N.E.2d 1019; People v. Newton, 298 A.D.2d 896, 748 N.Y.S.2d 93, lv. denied 99 N.Y.2d 562, 754 N.Y.S.2d 214, 784 N.E.2d 87; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). The court dismissed several counts charging defendant with possessing a sexual performance by a child (§ 263.16), and the jury acquitted defendant of the remainder of the counts charging him with that crime, as well as two counts of sodomy in the first degree (former § 130.50 [1], [4]; see People v. Jones, 301 A.D.2d 678, 680, 753 N.Y.S.2d 196, lv. denied 99 N.Y.2d 616, 757 N.Y.S.2d 826, 787 N.E.2d 1172; see generally People v. Rodriguez, 68 A.D.3d 1351, 1353, 890 N.Y.S.2d 735, lv. denied 14 N.Y.3d 804, 899 N.Y.S.2d 139, 925 N.E.2d 943).
We reject defendant's further contention that the imposition of consecutive sentences on each of the three sodomy counts was illegal, inasmuch as each of those counts charged a separate act involving the same victim ( see People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722; People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212; see also People v. Lanfair, 18 A.D.3d 1032, 1033–1034, 795 N.Y.S.2d 390, lv. denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671). As the People correctly concede, however, the court erred in imposing determinate sentences on the four counts of which defendant was convicted inasmuch as indeterminate sentences should have been imposed pursuant to Penal Law § 70.02 (former [3] [a], [4] ). We therefore modify the judgment by vacating the sentence imposed, and we remit the matter to Supreme Court for resentencing.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Monroe County, for resentencing.