THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TIMOTHY SHAY DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the definite sentences shall run concurrently with the indeterminate sentence and as modified the judgment is affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of possessing an obscene sexual performance by a child (Penal Law § 263.11) and two counts of sexual abuse in the second degree (§ 130.60[2] ).   We note at the outset that, as the People correctly concede, defendant did not waive his right to appeal.  “[A]lthough a waiver of the right to appeal was initially mentioned during a discussion of the elements of the plea agreement, County Court failed to elicit the waiver from defendant during the plea colloquy” (People v. Crane, 294 A.D.2d 867, 867, lv denied 98 N.Y.2d 767).

We reject defendant's contention that the sentence is unduly harsh or severe.   We agree with defendant, however, and the People again correctly concede, that the court erred in directing that the definite sentences imposed on the misdemeanor counts shall run consecutively to the indeterminate sentence imposed on the felony count (see Penal Law § 70.35).   We therefore modify the judgment by directing that the definite sentences shall run concurrently with the indeterminate sentence (see People v. Leabo, 84 N.Y.2d 952, 953;  People v. Shorter, 6 AD3d 1204, 1205–1206, lv denied 3 NY3d 648).

Frances E. Cafarell

Clerk of the Court