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

872
KA 14-00324
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY A. SHAY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered December 9, 2013. The judgment convicted
defendant, upon his plea of guilty, of possessing an obscene sexual
performance by a child and sexual abuse in the second degree (two
counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the definite
sentences shall run concurrently with the indeterminate sentence and
as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of possessing an obscene sexual performance by
a child (Penal Law § 263.11) and two counts of sexual abuse in the
second degree (§ 130.60 [2]). We note at the outset that, as the
People correctly concede, defendant did not waive his right to appeal.
“[A]lthough a waiver of the right to appeal was initially mentioned
during a discussion of the elements of the plea agreement, County
Court failed to elicit the waiver from defendant during the plea
colloquy” (People v Crane, 294 AD2d 867, 867, lv denied 98 NY2d 767).

     We reject defendant’s contention that the sentence is unduly
harsh or severe. We agree with defendant, however, and the People
again correctly concede, that the court erred in directing that the
definite sentences imposed on the misdemeanor counts shall run
consecutively to the indeterminate sentence imposed on the felony
count (see Penal Law § 70.35). We therefore modify the judgment by
directing that the definite sentences shall run concurrently with the
indeterminate sentence (see People v Leabo, 84 NY2d 952, 953; People v
                                 -2-                            872
                                                          KA 14-00324

Shorter, 6 AD3d 1204, 1205-1206, lv denied 3 NY3d 648).




Entered:   July 2, 2015                        Frances E. Cafarell
                                               Clerk of the Court
