People v. Boyce

133 A.D.2d 164, 518 N.Y.S.2d 827, 1987 N.Y. App. Div. LEXIS 49675

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 17, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lagaña, J.), rendered May 30, 1985, convicting him of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree (three counts), burglary in the first degree, assault in the second degree, assault in the third degree, and endangering the welfare of a minor, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Upon the exercise of our factual review power we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15 [5]).

The imposition of consecutive terms of imprisonment on the convictions for rape in the first degree, sodomy in the first degree, and burglary in the first degree was proper. Although these crimes 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. Therefore, concurrent sentences were not mandated (see, Penal Law § 70.25 [2]; see also, People v Brathwaite, 63 NY2d 839, 842-843; People v Dorsey, 79 AD2d 611; People v McMillan, 61 AD2d 800). We decline to substitute our discretion for that of the sentencing court (see, CPL 470.15 [3]; People v Suitte, 90 AD2d 80). Niehoff, J. P., Weinstein, Rubin and Kooper, JJ., concur.