PEOPLE v. OMEROVIC (2020)

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 a jury verdict of two counts of making a terroristic threat (Penal Law § 490.20 [1]). Although defendant was not required to preserve his contention that County Court imposed illegal consecutive sentences (see People v. Houston, 142 A.D.3d 1397, 1399, 38 N.Y.S.3d 368 [4th Dept. 2016], lv denied 28 N.Y.3d 1146, 52 N.Y.S.3d 297, 74 N.E.3d 682 [2017]), he was required, and failed, to preserve his related contention that the indictment is multiplicitous (see People v. Kobza, 66 A.D.3d 1387, 1388, 886 N.Y.S.2d 265 [4th Dept. 2009], lv denied 13 N.Y.3d 939, 895 N.Y.S.2d 330, 922 N.E.2d 919 [2010]). In any event, both contentions lack merit. An indictment is considered multiplicitous when a single offense is charged in more than one count (see People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011]; People v. Sprague, 151 A.D.3d 1921, 1922-1923, 59 N.Y.S.3d 221 [4th Dept. 2017], lv denied 30 N.Y.3d 1023, 70 N.Y.S.3d 455, 93 N.E.3d 1219 [2017]). Here, inasmuch as the events underlying the two counts occurred at distinct times on different days and as separate transactions, they did not constitute a “ ‘single, uninterrupted occurrence’ ” (Alonzo, 16 N.Y.3d at 270, 920 N.Y.S.2d 302, 945 N.E.2d 495; see generally People v. Moffitt, 20 A.D.3d 687, 690-691, 798 N.Y.S.2d 556 [3d Dept. 2005], lv denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143 [2005]), and thus the indictment was not multiplicitous. Further, because the acts underlying the crimes were separate and distinct, the imposition of consecutive sentences was permissible (see People v. Fuentes, 52 A.D.3d 1297, 1301, 859 N.Y.S.2d 841 [4th Dept. 2008], lv denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008]).

Finally, the sentence is not unduly harsh or severe.