           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
351
KA 09-01060
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JOHN R. MCLELLAN, DEFENDANT-APPELLANT.


TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ERIC M. DOLAN 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 (Robert C.
Noonan, A.J.), rendered February 27, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal sexual act in the
second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of two counts of criminal sexual act in the
second degree (Penal Law § 130.45 [1]). Although, as the People
correctly concede, defendant’s challenge to the legality of the
sentence survives his waiver of the right to appeal (see People v
Christopher T., 48 AD3d 1131), we reject defendant’s contention that
the imposition of consecutive sentences was illegal. The facts and
circumstances that defendant admitted during the plea allocution
establish that he committed two separate and distinct acts of oral
sexual conduct that formed the basis for the two counts of criminal
sexual act to which he pleaded guilty. Thus, County Court was
authorized to impose consecutive sentences (see People v Quirk, 73
AD3d 1089, lv denied 15 NY3d 955; see generally People v Laureano, 87
NY2d 640, 643-644).




Entered:   March 25, 2011                          Patricia L. Morgan
                                                   Clerk of the Court
