THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOHN MCLELLAN DEFENDANT APPELLANT (2011)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOHN R. MCLELLAN, DEFENDANT-APPELLANT.

KA 09-01060

Decided: March 25, 2011

PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.

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.

MEMORANDUM AND ORDER

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 N.Y.2d 640, 643-644).

Patricia L. Morgan

Clerk of the Court

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