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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Shannon J. LEACH, Defendant-Appellant.

Decided: November 15, 2002

Present PINE, J.P., HAYES, SCUDDER, KEHOE, and LAWTON, JJ. Bonnie Burgio, Watertown, for Defendant-Appellant. Edward M. Sharkey, District Attorney, Little Valley, for Plaintiff-Respondent.

Contrary to the contention of defendant, County Court properly directed that the term of imprisonment imposed on the count convicting him of criminal trespass in the second degree (Penal Law § 140.15) shall run consecutively to the term of imprisonment imposed on the count convicting him of criminal mischief in the fourth degree (§ 145.00[1] ).   Although defendant committed both crimes during the same criminal transaction, “the crimes [were] committed through separate and distinct acts” (People v. Salcedo, 92 N.Y.2d 1019, 1021, 684 N.Y.S.2d 480, 707 N.E.2d 435) and have no overlapping elements (see § 70.25[2] ).   There is no support in the record for defendant's further contention that, in sentencing defendant, the court penalized him for exercising his right to a hearing on the issue whether he violated the terms and conditions of his probation and we decline to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see People v. Fallen, 249 A.D.2d 771, 772-773, 672 N.Y.S.2d 157, lv. denied 92 N.Y.2d 879, 678 N.Y.S.2d 26, 700 N.E.2d 564).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.