People v. Tortorice

Appellate Division of the Supreme Court of New York

People v. Tortorice

175 A.D.2d 625, 572 N.Y.S.2d 268, 1991 N.Y. App. Div. LEXIS 10155

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 12, 1991

StatusPublished

Cited by2 cases

This text of 175 A.D.2d 625 (People v. Tortorice) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Tortorice, 175 A.D.2d 625, 572 N.Y.S.2d 268, 1991 N.Y. App. Div. LEXIS 10155 (N.Y. Ct. App. 1991).

Pincite

Opinion

— Judgment unanimously affirmed. Memorandum: Defendant was convicted of one count of sodomy in the second degree and six counts of endangering the welfare of a child, and was sentenced as a second felony offender to an indeterminate term of from three to six years on the sodomy conviction and to a concurrent definite term of nine months on one count of endangering the welfare of a child. On the remaining five counts of endangering the welfare of a child, he was sentenced to five nine-month definite terms, to be served consecutive to each other and to the indeterminate sentence. Defendant argues on appeal that, pursuant to an amendment to Penal Law § 70.35, his definite sentences must merge at the outset with his indeterminate sentence, contrary to our holding in People v Moore (147 AD2d 971). Although our holding in Moore is no longer valid, the amendment to Penal Law § 70.35 does not require any action by this Court. The Department of Correctional Services must calculate the period of incarceration in accordance with Penal Law § 70.35, but that statute does not restrict the court’s ability to impose consecutive sentences (see, e.g., People v Moore, 61 NY2d 575, 578).

We have examined defendant’s remaining arguments on appeal and find them to be without merit. (Appeal from Judgment of Erie County Court, Rogowski, J. — Sodomy, 2nd Degree.) Present — Boomer, J. P., Pine, Balio, Lawton and Davis, JJ.

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— Judgment unanimously affirmed. Memorandum: Defendant was convicted of one count of sodomy in the second degree and six counts of endangering the welfare of a child, and was sentenced as a second felony offender to an indeterminate term of from three to six years on the sodomy conviction and to a concurrent definite term of nine months on one count of endangering the welfare of a child. On the remaining five counts of endangering the welfare of a child, he was sentenced to five nine-month definite terms, to be served consecutive to each other and to the indeterminate sentence. Defendant argues on appeal that, pursuant to an amendment to Penal Law § 70.35, his definite sentences must merge at the outset with his indeterminate sentence, contrary to our holding in People v Moore (147 AD2d 971). Although our holding in Moore is no longer valid, the amendment to Penal Law § 70.35 does not require any action by this Court. The Department of Correctional Services must calculate the period of incarceration in accordance with Penal Law § 70.35, but that statute does not restrict the court’s ability to impose consecutive sentences (see, e.g., People v Moore, 61 NY2d 575, 578).

We have examined defendant’s remaining arguments on appeal and find them to be without merit. (Appeal from Judgment of Erie County Court, Rogowski, J. — Sodomy, 2nd Degree.) Present — Boomer, J. P., Pine, Balio, Lawton and Davis, JJ.

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Bluebook (online)

175 A.D.2d 625, 572 N.Y.S.2d 268, 1991 N.Y. App. Div. LEXIS 10155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tortorice-nyappdiv-1991.

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