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People v. Leach

299 A.D.2d 957 Court N.Y. App. Div. Decision date 2002-11-15 English

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p. 957
The People of the State of New York, Respondent, v Shannon J. Leach, Appellant.
[750 NYS2d 421]

Appeal from a judgment of Cattaraugus County Court (Himelein, J.), entered February 11, 2002, which revoked defendant’s probation and imposed a sentence of imprisonment.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Contrary to the contention of defendant, County Court properly directed that the term of imprisonment imposed on the count convicting him of criminal trespass in the second degree (Penal Law § 140.15) shall run consecutively to the term of imprisonment imposed on the count convicting him of criminal mischief in the fourth degree (§ 145.00 [1]). Although defendant committed both crimes during the same criminal transaction, “the crimes [were] committed through separate and distinct acts” (People v Salcedo, 92 NY2d 1019 ,

p. 958
1021) and have no overlapping elements (see § 70.25 [2]). There is no support in the record for defendant’s further contention that, in sentencing defendant, the court penalized him for exercising his right to a hearing on the issue whether he violated the terms and conditions of his probation and we decline to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see People v Fallen, 249 AD2d 771 , 772-773, lv denied 92 NY2d 879 ). Present-Pine, J.P., Hayes, Scudder, Kehoe and Lawton, JJ.

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