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

1088
KA 08-01131
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JONATHAN J. MEEK, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered March 25, 2008. The judgment
convicted defendant, upon a jury verdict, of course of sexual conduct
against a child in the first degree and sodomy in the first degree
(three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Supreme Court, Monroe County, for resentencing.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of course of sexual conduct against a child in
the first degree (Penal Law § 130.75 [former (a)]) and three counts of
sodomy in the first degree (former § 130.50 [3]). Defendant contends
that Supreme Court erred in denying his motions to sever the counts
charging possessing a sexual performance by a child from the other
counts of the indictment. We conclude that any such error is harmless
inasmuch as the evidence of defendant’s guilt was overwhelming and
there was no significant probability that defendant would have been
acquitted of the counts in question but for the alleged error (see
People v Serrano, 74 AD3d 1104, 1107, lv denied 15 NY3d 895; People v
Newton, 298 AD2d 896, lv denied 99 NY2d 562; see generally People v
Crimmins, 36 NY2d 230, 241-242). The court dismissed several counts
charging defendant with possessing a sexual performance by a child (§
263.16), and the jury acquitted defendant of the remainder of the
counts charging him with that crime, as well as two counts of sodomy
in the first degree (former § 130.50 [1], [4]; see People v Jones, 301
AD2d 678, 680, lv denied 99 NY2d 616; see generally People v
Rodriguez, 68 AD3d 1351, 1353, lv denied 14 NY3d 804).

     We reject defendant’s further contention that the imposition of
                                 -2-                          1088
                                                         KA 08-01131

consecutive sentences on each of the three sodomy counts was illegal,
inasmuch as each of those counts charged a separate act involving the
same victim (see People v Ramirez, 89 NY2d 444, 451; People v
Laureano, 87 NY2d 640, 643; see also People v Lanfair, 18 AD3d 1032,
1033-1034, lv denied 5 NY3d 790). As the People correctly concede,
however, the court erred in imposing determinate sentences on the four
counts of which defendant was convicted inasmuch as indeterminate
sentences should have been imposed pursuant to Penal Law § 70.02
(former [3] [a], [4]). We therefore modify the judgment by vacating
the sentence imposed, and we remit the matter to Supreme Court for
resentencing.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
