People v. Leach

299 A.D.2d 957, 750 N.Y.S.2d 421, 2002 N.Y. App. Div. LEXIS 11049

Opinion

Appeal from a judgment of Cattaraugus County Court (Himelein, J.), entered February 11, 2002, which revoked defendant’s probation and imposed a sentence of imprisonment.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Contrary to the contention of defendant, County Court properly directed that the term of imprisonment imposed on the count convicting him of criminal trespass in the second degree (Penal Law § 140.15) shall run consecutively to the term of imprisonment imposed on the count convicting him of criminal mischief in the fourth degree (§ 145.00 [1]). Although defendant committed both crimes during the same criminal transaction, “the crimes [were] committed through separate and distinct acts” (People v Salcedo, 92 NY2d 1019, ) and have no overlapping elements (see § 70.25 [2]). There is no support in the record for defendant’s further contention that, in sentencing defendant, the court penalized him for exercising his right to a hearing on the issue whether he violated the terms and conditions of his probation and we decline to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see People v Fallen, 249 AD2d 771, 772-773, lv denied 92 NY2d 879). Present-Pine, J.P., Hayes, Scudder, Kehoe and Lawton, JJ.