Opinion
December 16, 1983
Appeal from the Niagara County Court, Hannigan, J.
Present — Dillon, P.J., Doerr, Denman, O'Donnell and Moule, JJ.
Judgment unanimously modified, on the law, and, as modified, affirmed, in accordance with the following memorandum: Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15), and resisting arrest (Penal Law, § 205.30). He was sentenced to a one-year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under subdivision 3 of section 70.25 Penal of the Penal Law. While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd 3; People v. Silvagnio, 79 A.D.2d 1112; People v Salter, 39 A.D.2d 593). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power ( People v. Selikoff, 35 N.Y.2d 227, 238; People v. Lopez, 28 N.Y.2d 148). Accordingly we modify the sentence for resisting arrest by directing that it run concurrently with the sentence for criminal trespass, second degree.