Opinion
February 16, 2000
Appeal from Order of Erie County Court, Drury, J. — CPL art 440.
PRESENT: HAYES, J. P., HURLBUTT, BALIO AND LAWTON, JJ.
Order unanimously modified on the law and as modified affirmed in accordance with the following Memorandum:
Defendant contends that County Court erred in denying his CPL 440.20 (1) motion on the ground that the imposition of consecutive sentences for his conviction of rape in the first degree, sodomy in the first degree, robbery in the first degree and unauthorized use of a motor vehicle in the first degree is illegal under Penal Law § 70.25 (2). The People candidly concede that defendant's sentence should be modified by directing that the sentence imposed for unauthorized use of a motor vehicle in the first degree shall run concurrently with the sentences on the other counts. The People assert, however, that the court's imposition of consecutive terms of imprisonment on the rape, sodomy and robbery counts is legal. We agree. Although the rape, sodomy and robbery "took place over a continuous course of activity, they constituted separate and distinct acts, and none of the completed offenses was a material element of another offense" ( People v. Boyce, 133 A.D.2d 164; see, People v. Davis, 238 A.D.2d 517, 518, lv denied 90 N.Y.2d 903; People v. Guthrie, 222 A.D.2d 1084, 1085, lv denied 87 N.Y.2d 973; People v. Rivera, 186 A.D.2d 594, 596, lv denied 81 N.Y.2d 846; People v. Whiting, 182 A.D.2d 732, 733, lv denied 80 N.Y.2d 1030). Consequently, we modify the order by granting in part defendant's motion and setting aside that part of the sentence directing that the term of imprisonment for unauthorized use of a motor vehicle shall run consecutively with the terms imposed on the other counts and by directing that said term of imprisonment shall run concurrently.