People v. Cordoba

208 A.D.2d 420, 617 N.Y.S.2d 305, 1994 N.Y. App. Div. LEXIS 9723

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1994
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered June 24, 1992, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree and conspiracy in the second degree, and sentencing him to consecutive terms of 8 Vs years to life and 1% to 5 years, respectively, unanimously affirmed.

While we agree with defendant that the issue of the legality of a sentence may not be waived as part of a plea bargain (People v Seaberg, 74 NY2d 1, 9), we conclude that he was lawfully sentenced to consecutive terms for possession of drugs and conspiracy to possess the same drugs (People v Martinez, 198 AD2d 197, lv denied 82 NY2d 927). Although the possession can be viewed as closely related to the "overt acts”, as alleged in the indictment, which are necessary to prove the conspiracy, the crimes of conspiracy and possession were not committed through a single act (Penal Law § 70.25 [2]; § 105.20; People v McGee, 49 NY2d 48, 57-58, cert denied sub nom. Quamina v New York, 446 US 942; see also, People v Brown, 80 NY2d 361, affg 174 AD2d 448). Concur—Wallach, J. P., Kupferman, Ross, Asch and Rubin, JJ.