           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1262
KA 10-00053
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JAMES PERRY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE
WOLFORD OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered November 17, 2009. The judgment
convicted defendant, upon a jury verdict, of petit larceny and
criminal contempt in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Supreme Court,
Monroe County, for proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of petit larceny (Penal Law § 155.25) and criminal
contempt in the second degree (§ 215.50 [3]), as lesser included
offenses of the two crimes charged in the indictment. Contrary to
defendant’s contention, the imposition of concurrent sentences was not
required pursuant to Penal Law § 70.25 (2). Although the underlying
acts of theft and criminal contempt “took place over a continuous
course of activity, they constituted separate and distinct acts, and
[neither] of the completed offenses was a material element of [the
other]” (People v Boyce, 133 AD2d 164; see People v Bailey, 17 AD3d
1022, lv denied 5 NY3d 803; see generally People v Laureano, 87 NY2d
640, 643).




Entered:    December 23, 2011                      Frances E. Cafarell
                                                   Clerk of the Court
