PEOPLE v. DENNO (2008)

Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered August 21, 2007, convicting defendant upon his plea of guilty of two counts of the crime of criminal sexual act in the third degree.

On June 30, 2006, defendant, who was 39 years old, allegedly engaged in sexual conduct with two boys, ages 11 and 13.   He subsequently pleaded guilty to two counts of criminal sexual act in the third degree and was sentenced to consecutive prison terms of 1 1/313 to 4 years.   County Court also directed a reparation of $728.11, reflecting the cost incurred by the mother of one of the young boys to travel from her and her son's home in Texas to appear and address the court before sentencing regarding the impact the crime had upon the child.   Defendant appeals arguing that County Court erred in imposing consecutive sentences and in assessing the reparation.

 “[S]entences may be imposed to run consecutively when multiple offenses are committed through separate and distinct acts, though they are part of a single transaction” (People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722 [1996];  see People v. Perkins, 27 A.D.3d 890, 893-894, 810 N.Y.S.2d 596 [2006], lvs. denied 6 N.Y.3d 897, 817 N.Y.S.2d 632, 850 N.E.2d 679 [2006], 7 N.Y.3d 761, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006];  People v. May, 263 A.D.2d 215, 221, 702 N.Y.S.2d 393 [2000], lv. denied 94 N.Y.2d 950, 710 N.Y.S.2d 7, 731 N.E.2d 624 [2000];  cf. People v. Dean, 8 N.Y.3d 929, 930-931, 834 N.Y.S.2d 704, 866 N.E.2d 1032 [2007] ).   During the plea allocution, defendant admitted that he placed his mouth on the penis of one victim.   He further acknowledged that, as to the other victim, he put his penis in the mouth of that child.   The plea allocution set forth facts establishing separate and distinct acts perpetrated upon two victims.   Accordingly, consecutive sentences were proper (see People v. Lanfair, 18 A.D.3d 1032, 1033-1034, 795 N.Y.S.2d 390 [2005], lv. denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671 [2005];  see also People v. Mendez, 50 A.D.3d 924, 924-925, 856 N.Y.S.2d 204 [2008], lv. denied 10 N.Y.3d 962, 863 N.Y.S.2d 146, 893 N.E.2d 452 [2008] ).

 Defendant did not object to the amount of the reparation, which consisted of air fare from Texas ($328.11 round trip) and four days lost wages as a waitress.   He limited his argument to the contention that the costs are not a proper reparation.   We cannot agree.   As the parent of a child victim, the mother was also a victim under the restitution and reparation statute (see Penal Law § 60.27[4][b];  see also Executive Law § 621[6] ).   She had an absolute right, flowing directly from defendant's admitted criminal conduct, to appear and address County Court about the effect of the crime on the child (see CPL 380.50[2][a][2];  [2][b] ).  Penal Law § 60.27(1) authorizes “reparation for the actual out-of-pocket loss caused [by defendant's offense].”   While neither party provided a case from this state directly on point, several other jurisdictions have construed their restitution/reparation statutes to include, under some circumstances, similar expenses as County Court awarded here (see e.g. People v. Lassek, 122 P.3d 1029, 1036 [Colo.App.2005];  State of Idaho v. Doe, 140 Idaho 873, 880, 103 P.3d 967, 974 [2004];  State of Arizona v. Madrid, 207 Ariz. 296, 298-300, 85 P.3d 1054, 1056-1058 [2004];  United States v. Pizzichiello, 272 F.3d 1232, 1240-1241 [9th Cir2001], cert. denied 537 U.S. 852, 123 S.Ct. 206, 154 L.Ed.2d 84 [2002];  Matter of J.A.D., 603 N.W.2d 844, 847 [Minn.App.1999] ).   Significantly, New York has a “long-standing policy of promoting, encouraging and facilitating the use of restitution to reimburse victims for monetary and other losses caused by criminal conduct” (People v. Horne, 97 N.Y.2d 404, 412, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ).   The modest reparation directed here was consistent with this long-standing policy.   The mother, both as a victim herself and more importantly to exercise her statutory right to speak to the court on behalf of the child victim, incurred actual costs directly caused by defendant's criminal conduct.   Under these circumstances, we are unpersuaded that County Court improvidently exercised its discretion in ordering the payment (see People v. Contes, 289 A.D.2d 128, 129, 735 N.Y.S.2d 35 [2001] ).

ORDERED that the judgment is affirmed.

LAHTINEN, J.

CARDONA, P.J., MERCURE, SPAIN and MALONE JR., JJ., concur.