PEOPLE v. FREDERICK (2001)

 Defendant appeals from a judgment convicting him after a jury trial of criminal contempt in the first degree (Penal Law § 215.51[b][v] ), assault in the third degree (Penal Law § 120.00[2] ) and criminal mischief in the fourth degree (Penal Law § 145.00).   Defendant contends that Supreme Court erred in allowing the People to use the preliminary hearing testimony of the complainant when she could not be located for trial.   We disagree.   The People did not attempt to locate the complainant until nine days before trial.   Nevertheless, the court did not err in concluding that the People had used due diligence in attempting to locate the complainant (see, CPL 670.10[1];  cf., People v. Steeps, 52 A.D.2d 887, 383 N.Y.S.2d 74).   Further, the court permitted defendant to present evidence to impeach the credibility of the complainant, thereby mitigating any prejudice to defendant.

 We disagree with defendant that the court erred in sentencing him to consecutive terms of incarceration.   Sentences may not run consecutively “(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  see, People v. Brown, 80 N.Y.2d 361, 363-364, 590 N.Y.S.2d 422, 604 N.E.2d 1353).   Here, each offense consisted of a separate act and none of the acts constituting each offense was a material element of another.

Judgment unanimously affirmed.

MEMORANDUM: