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People v. Pena

126 A.D.3d 618 Court N.Y. App. Div. Decision date 2015-03-26 English

Judges Concur — Gonzalez, P.J., Acosta, Moskowitz, Richter and Feinman, JJ.

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p. 618
The People of the State of New York, Respondent, v Michael Pena, Appellant.
[3 NYS3d 604]

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

p. 619
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 Rummel 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.

Concur — Gonzalez, P.J., Acosta, Moskowitz, Richter and Feinman, JJ.

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