People v. Kelley

25 A.D.2d 715, 270 N.Y.S.2d 127, 1966 N.Y. App. Div. LEXIS 4629

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1966
• Status: Published

Opinion

Judgment unanimously modified on the law and facts in accordance with memorandum and as modified, affirmed. Memorandum: Defendant went to trial on a two-count indictment accusing him of committing the crimes of burglary, third degree, and petit larceny as part of a single transaction. After the People rested, the court denied defendant’s motion to dismiss but stated that it would submit the first count as unlawful entry. Thereafter defendant pleaded guilty to unlawful entry under the first count and petit larceny under the second count. The court sentenced defendant to a term of one year on each count, to run consecutively. We conclude that it was error to make the sentences run consecutively. Under the facts in this case, defendant pleaded guilty to unlawful entry in that he entered a building without a breaking with intent to commit larceny therein under the first count of the indictment and petit larceny under the second count. Thus, the plea admitted the facts which established that both crimes arose out of a single transaction motivated by a continuing intent to commit larceny. Consequently it was improper to impose consecutive sentences. (See People ex rel. Maurer v. Jackson, 2 N Y 2d 259.) We do not reach or pass upon whether a plea of guilty to a reduced charge of unlawful entry and petit larceny in satisfaction of an indictment charging burglary and petit larceny would never warrant consecutive sentences. Pursuant to the authority of subdivision 1 of section 543 of the Code of Criminal Procedure the judgment should be modified by directing that the two sentences run concurrently and not consecutively. (Appeal from judgment of Erie County Court convicting defendant of unlawful entry and petit larceny.)

Present — Williams, P. J., Bastow, Goldman, Del Yeeehio and Marsh, JJ.