

People v Pena (2015 NY Slip Op 02563)





People v Pena


2015 NY Slip Op 02563


Decided on March 26, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 26, 2015

Gonzalez, P.J., Acosta, Moskowitz, Richter, Feinman, JJ.


14632 4162/11

[*1] The People of the State of New York, Respondent,
vMichael Pena, Defendant-Appellant.


Ephraim Savitt, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered May 7, 2012, convicting defendant, after a jury trial, of three counts of predatory sexual assault, and three counts of criminal sexual act in the first degree, and sentencing him to an aggregate term of 75 years to life, unanimously affirmed.
The court lawfully imposed consecutive sentences for defendant's three predatory sexual assault convictions. Defendant, an off-duty police officer, threatened to shoot the victim, and dragged her into an alleyway and a courtyard. There, defendant pointed his firearm at the victim's head and committed three criminal sexual acts. As relevant here, a person is guilty of predatory sexual assault when (1) he or she commits the crime of first-degree criminal sexual act, and (2) during the commission of that crime, he or she uses or threatens the immediate use of a dangerous instrument (Penal Law § 130.95[1][b]). Although defendant's convictions on three counts of predatory sexual assault involved a single transaction and shared the dangerous instrument element, consecutive sentences were permissible because the three criminal sexual acts were separate and distinct (see People v Yong Yun Lee , 92 NY2d 987, 989 [1998]).
Defendant did not preserve his claim that his aggregate sentence was unconstitutionally excessive (see People v Ingram , 67 NY2d 897, 899 [1986]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see Rummell v Estelle , 445 US 263 [1980]; People v Broadie , 37 NY2d 100 [1975], cert denied  423 US 950 [1975]).
We perceive no basis for reducing the sentence in the interest of justice.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 26, 2015
CLERK


