PEOPLE v. BEZABEH (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered May 4, 2023, convicting him of two counts of petit larceny, upon his plea of guilty, and sentencing him to consecutive terms of imprisonment of 364 days on each count.

ORDERED that the judgment is modified, on the law, by providing that the sentence imposed on the conviction on the first count of petit larceny shall run concurrently with the sentence imposed on the second count of petit larceny;  as so modified, the judgment is affirmed.

The defendant contends that the imposition of consecutive sentences for the two counts of petit larceny was illegal.  Under Penal Law § 70.25, “ ‘sentences imposed for two or more offenses 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. McGovern, 42 N.Y.3d 532, 536, 224 N.Y.S.3d 382, 249 N.E.3d 732, quoting People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  see People v. Brown, 193 A.D.3d 758, 141 N.Y.S.3d 871).  “Even if the statutory elements of the offenses do overlap, ‘the People may yet establish the legality of consecutive sentencing by showing that the “acts or omissions” committed by defendant were separate and distinct acts’ ” (People v. Brown, 193 A.D.3d at 759, 141 N.Y.S.3d 871, quoting People v. Laureano, 87 N.Y.2d at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  see People v. Brahney, 29 N.Y.3d 10, 14–15, 51 N.Y.S.3d 9, 73 N.E.3d 349).

Here, no facts were alleged in the indictment or adduced at the defendant's plea allocution that establish separate acts of larceny (see People v. Frank, 232 A.D.3d 621, 623, 222 N.Y.S.3d 100;  People v. Bailey, 167 A.D.3d 924, 925, 90 N.Y.S.3d 122).  Accordingly, there was no basis for imposing consecutive sentences for two counts of petit larceny (see People v. Adams, 194 A.D.3d 730, 731, 143 N.Y.S.3d 568;  People v. Bailey, 167 A.D.3d at 925, 90 N.Y.S.3d 122).  Although the defendant has completed the imposed sentences, the question of whether the imposition of consecutive sentences was illegal is not academic, because the sentences imposed have potential immigration consequences (see 8 USC § 1227[a][2][A];  People v. Augustine, 231 A.D.3d 849, 851, 218 N.Y.S.3d 143;  People v. Vega, 165 A.D.3d 984, 86 N.Y.S.3d 213).

IANNACCI, J.P., MILLER, VOUTSINAS and GOLIA, JJ., concur.