People v. Pardy

Defendant maintains that his sentence is illegal in that consecutive prison terms were not authorized in the absence of proof concerning when he downloaded the subject images to his computer. We agree. Consecutive sentences are authorized when “ ‘the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct’ ” (People v Dean, 8 NY3d 929, 930-931 [2007], quoting People v Ramirez, 89 NY2d 444, 451 [1996]). The determination as to whether defendant committed separate and distinct acts of possession turns upon when the images came into his possession (see People v Dean, 8 NY3d at 930-931; People v Smith, 58 AD3d 888, 889 [2009]; People v Lynch, 291 AD2d 582, 583 [2002]). While the accusatory instrument and defendant’s plea allocution each specified the date and time upon which the images were retrieved from defendant’s computer, there was no information regarding defendant’s act of downloading the images. Accordingly, consecutive sentences were not authorized in the absence of such information (see id.).

Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is modified, on the law, by directing that defendant’s sentences shall run concurrently rather than consecutively, and, as so modified, affirmed.