PeoplevMoon

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 31, 2014 105793
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ERIC MOON,
Appellant.
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Calendar Date: May 30, 2014
Before: Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.
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Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.
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Stein, J.P.
Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered June 20, 2012, convicting defendant upon
his plea of guilty of the crime of assault in the second degree
(two counts).
Defendant was charged in an indictment with two counts of
assault in the first degree and two counts of assault in the
second degree, arising from an incident in July 2011 during which
his codefendants shot into a crowd with a shotgun and a rifle and
seriously injured two people. Thereafter, defendant pleaded
guilty to both counts of assault in the second degree in exchange
for a prison term of six years followed by five years of
postrelease supervision on each count, to be served
consecutively, and waived his right to appeal. Prior to
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sentencing, defendant moved to withdraw his plea. That motion
was denied, and County Court thereafter sentenced defendant, as a
second felony offender, to the agreed-upon term. Defendant now
appeals.
We affirm. To the extent that defendant contends that the
indictment was jurisdictionally defective, we note that an
indictment will be found defective when it fails to charge the
defendant with the commission of a particular crime. However,
"[w]here an indictment count incorporates by reference the
statutory provision applicable to the crime intended to be
charged, it has been repeatedly held that this is sufficient to
apprise the defendant of the charge and, therefore, renders the
count jurisdictionally valid" (People v Cruz, 104 AD3d 1022, 1023
[2013] [internal quotation marks and citation omitted]). Here,
the counts of the indictment to which defendant pleaded recite,
among other things, the specific section of the Penal Law under
which defendant was charged and, accordingly, the indictment was
not jurisdictionally defective (see People v Cruz, 104 AD3d at
1023-1024; People v Brown, 75 AD3d 655, 656 [2010]). Further,
defendant's challenge to the factual sufficiency of the
indictment, which amounts to a nonjurisdictional defect, is
foreclosed by his guilty plea (see People v Olmstead, 111 AD3d
1063, 1064 [2013]; People v Cruz, 104 AD3d at 1024).
Lastly, we reject defendant's contention that the
imposition of consecutive sentences was illegal. Pursuant to
Penal Law § 70.25 (2), sentences must run concurrently for two or
more offenses committed through a single act or omission.
However, consecutive sentences may be imposed when "'the acts
involved, though part of a continuous course of conduct, can be
separated into separate and distinct events'" (People v Snyder,
91 AD3d 1206, 1215 [2012], lv denied 19 NY3d 968 [2012], cert
denied ___ US ___, 133 S. Ct. 791 [2012], quoting People v
Williams, 51 AD3d 1141, 1145 [2008], lvs denied 10 NY3d 959, 965
[2008]). Here, considering defendant's allocution wherein he
admitted that multiple shots were fired and the absence of any
contention that the same bullet injured both victims, as well as
the fact that defendant pleaded guilty with the understanding
that the sentences for each assault would be imposed
consecutively, County Court did not err in concluding that the
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shootings constituted separate and distinct acts and, thus, in
imposing consecutive sentences (see People v Brathwaite, 63 NY2d
839, 842-843 [1984]; People v Holmes, 92 AD3d 957, 957 [2012],
lvs denied 19 NY3d 961, 967 [2012]).
McCarthy, Egan Jr., Lynch and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court