                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     105768
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

NINA C. GARCIA, Now Known as
   NINA HOPKINS,
                    Appellant.
________________________________


Calendar Date:   May 5, 2015

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Rose, JJ.

                               __________


     Francisco P. Berry, Ithaca, for appellant.

      Mark D. Suben, District Attorney, Cortland (Elizabeth
McGrath of counsel), for respondent.

                               __________


      Appeal from a judgment of the County Court of Cortland
County (Campbell, J.), rendered February 21, 2013, upon a verdict
convicting defendant of the crimes of grand larceny in the fourth
degree, criminal possession of stolen property in the fourth
degree, forgery in the third degree and petit larceny.

      Defendant was arrested after she stole a coworker's credit
card and used it to purchase items at two retail locations. As a
result, defendant was charged in an indictment with various
theft-related crimes. Following a jury trial, she was convicted
of grand larceny in the fourth degree, criminal possession of
stolen property in the fourth degree, forgery in the third degree
and petit larceny. Defendant thereafter was sentenced as a
second felony offender to consecutive terms of 2 to 4 years in
prison on the grand larceny and criminal possession convictions,
                              -2-                105768

and to one year in jail on each of the remaining convictions, to
run concurrently. Defendant appeals.

      Defendant's sole challenge is to the legality of the
sentence. Specifically, she contends that County Court was
required, pursuant to Penal Law § 70.25 (2), to direct that the
sentences for the crimes of grand larceny in the fourth degree
and criminal possession of stolen property in the fourth degree
run concurrently, rather than consecutively. We disagree. Penal
Law § 70.25 (2) provides that sentences must run concurrently,
"[w]hen more than one sentence of imprisonment is imposed . . .
for two or more offenses committed through a single act or
omission, or through an act or omission which in itself
constituted one of the offenses and also was a material element
of the other." Here, defendant's act of stealing the credit card
constituted the crime of grand larceny in the fourth degree (see
Penal Law § 155.30 [4]), and her act of possessing that credit
card with the intent to benefit herself constituted the crime of
criminal possession of stolen property in the fourth degree (see
Penal Law § 165.45 [2]; see also People v Morrison, 290 AD2d 808,
809-810 [2002], lv denied 98 NY2d 653 [2002]). Under the
definitions set forth in the Penal Law, these crimes entailed
separate acts. Moreover, inasmuch as the statutory elements of
the larceny offense are distinct from the possessory offense, one
is not a component of the other, nor do the material elements of
these offenses overlap (see People v Day, 73 NY2d 208, 211-212
[1989]). Therefore, we conclude that County Court was not
required by Penal Law § 70.25 (2) to impose concurrent sentences.

     Lahtinen, J.P., McCarthy, Egan Jr. and Rose, JJ., concur.
                        -3-                  105768

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
