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The People of the State of New York v. James Perry

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 23, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMES PERRY,
DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered November 17, 2009. The judgment convicted defendant, upon a jury verdict, of petit larceny and criminal contempt in the second degree.

People v Perry

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 23, 2011

PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Supreme Court, Monroe County, for proceedings pursuant to CPL 460.50 (5).

Memorandum:

Defendant appeals from a judgment convicting him upon a jury verdict of petit larceny (Penal Law § 155.25) and criminal contempt in the second degree (§ 215.50 [3]), as lesser included offenses of the two crimes charged in the indictment. 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 theft and criminal contempt "took place over a continuous course of activity, they constituted separate and distinct acts, and [neither] of the completed offenses was a material element of [the other]" (People v Boyce, 133 AD2d 164; see People v Bailey, 17 AD3d 1022, lv denied 5 NY3d 803; see generally People v Laureano, 87 NY2d 640, 643).

Entered: December 23, 2011

Frances E. Cafarell Clerk of the Court

20111223

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