by

James Eckert
Assistant Monroe County Public Defemder

I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.

There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."

"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."

People v. Taylor, 197 A.D.2d 858, 859 (1993).

Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:

"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."