SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
76
KA 14-00503
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MICHAEL ORTH, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered February 7, 2014. The judgment
convicted defendant, upon his plea of guilty, of petit larceny,
resisting arrest and driving while intoxicated, a misdemeanor.
It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the terms of
imprisonment shall run concurrently, and as modified the judgment is
affirmed, and the matter is remitted to Supreme Court, Erie County,
for proceedings pursuant to CPL 460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of petit larceny (Penal Law § 155.25),
resisting arrest (§ 205.30), and driving while intoxicated (Vehicle
and Traffic Law § 1192 [3]). We agree with defendant that his
sentence is illegal to the extent that Supreme Court imposed
consecutive definite sentences of one year each for the offenses of
petit larceny and resisting arrest. “Because those offenses were
committed as part of a single incident, imposition of consecutive
sentences aggregating more than one year is illegal” (People v
Beckwith, 270 AD2d 798, 798; see Penal Law § 70.25 [3]). We therefore
modify the judgment by directing that those sentences run
concurrently.
Entered: February 13, 2015 Frances E. Cafarell
Clerk of the Court