PEOPLE v. BAILEY

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Nasrallas BAILEY, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  GREEN, J.P., SCUDDER, KEHOE, SMITH, AND HAYES, JJ. Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Jay Topkis of Counsel), and Stillman & Friedman, P.C., for Defendant-Appellant. Michael A. Arcuri, District Attorney, Utica (Douglas M. De Marché, Jr., of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of one count of rape in the third degree (Penal Law § 130.25 [3] ) and three counts of sodomy in the third degree (former § 130.40[3] ).   We reject the contention of defendant that he was denied effective assistance of counsel where, as here, “the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Also contrary to defendant's contention, the imposition of concurrent sentences was not required pursuant to Penal Law § 70.25(2).   Although the underlying acts of rape and sodomy “took place over a continuous course of activity, they constituted separate and distinct acts, and none of the completed offenses was a material element of another offense” (People v. Boyce, 133 A.D.2d 164, 164, 518 N.Y.S.2d 827;  see People v. Smith, 269 A.D.2d 778, 703 N.Y.S.2d 849, lv. denied 95 N.Y.2d 804, 711 N.Y.S.2d 172, 733 N.E.2d 244;  People v. Brown, 66 A.D.2d 223, 226, 413 N.Y.S.2d 482).   We conclude, however, that the imposition of four consecutive terms of imprisonment renders the sentence unduly harsh (see CPL 470.15[6][b] ).  Therefore, as a matter of discretion in the interest of justice, we modify the judgment by directing that the terms of imprisonment imposed on the second, third and fourth counts, i.e., the three counts of sodomy in the third degree, shall run concurrently with one another and consecutively to the term of imprisonment imposed on the first count, i.e., rape in the third degree.

We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by directing that the terms of imprisonment imposed on the second, third and fourth counts of the indictment shall run concurrently with one another and consecutively to the term of imprisonment imposed on the first count of the indictment and as modified the judgment is affirmed.

MEMORANDUM: