MCLELLAN, JOHN R., PEOPLE v ( 2011 )


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  •            SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    351
    KA 09-01060
    PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                               MEMORANDUM AND ORDER
    JOHN R. MCLELLAN, DEFENDANT-APPELLANT.
    TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ERIC M. DOLAN OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Orleans County Court (Robert C.
    Noonan, A.J.), rendered February 27, 2009. The judgment convicted
    defendant, upon his plea of guilty, of criminal sexual act in the
    second degree (two counts).
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him,
    upon his plea of guilty, of two counts of criminal sexual act in the
    second degree (Penal Law § 130.45 [1]). Although, as the People
    correctly concede, defendant’s challenge to the legality of the
    sentence survives his waiver of the right to appeal (see People v
    Christopher T., 48 AD3d 1131), we reject defendant’s contention that
    the imposition of consecutive sentences was illegal. The facts and
    circumstances that defendant admitted during the plea allocution
    establish that he committed two separate and distinct acts of oral
    sexual conduct that formed the basis for the two counts of criminal
    sexual act to which he pleaded guilty. Thus, County Court was
    authorized to impose consecutive sentences (see People v Quirk, 73
    AD3d 1089, lv denied 15 NY3d 955; see generally People v Laureano, 87
    NY2d 640, 643-644).
    Entered:   March 25, 2011                          Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: KA 09-01060

Filed Date: 3/25/2011

Precedential Status: Precedential

Modified Date: 10/8/2016