Calendar Date: May 1, 2018Before: Garry, P.J., McCarthy, Devine, Aarons and Pritzker, JJ.__________Cliff Gordon, Monticello, for appellant.James R. Farrell, District Attorney, Monticello, forrespondent.__________Aarons, J.Appeal from a judgment of the County Court of SullivanCounty (LaBuda, J.), rendered March 21, 2016, convictingdefendant upon his plea of guilty of the crimes of grand larcenyin the second degree, scheme to defraud in the first degree andpossession of a sexual performance by a child (three counts).In satisfaction of a 214-count indictment, defendantpleaded guilty to three counts of possession of a sexualperformance by a child and waived his right to appeal. Inaddition, defendant pleaded guilty to a superior courtinformation charging him with grand larceny in the second degreeand scheme to defraud in the first degree, again waiving hisright to appeal both orally and in writing. Defendant wassentenced to prison terms of 1 to 3 years on his convictions ofpossession of a sexual performance by a child under counts 1 and2 of the indictment and 1a to 4 years on the remainingconviction for said crime under count 3, all to run consecutivelywith each other. For his grand larceny and scheme to defraudconvictions, defendant was sentenced to an aggregate prison termof 3ó to 10ó years, to run concurrently with the sentencesimposed for the convictions of possession of a sexual performanceby a child. Defendant appeals.The People concede, and our review of the record confirms,that the imposition of consecutive sentences for possession of asexual performance by a child convictions were not authorizedbecause his conduct amounted to a single criminal act.1 “It iswell settled that sentences are authorized to be imposedconsecutively if multiple offenses are committed through separateand distinct acts, even though they may be part of a singletransaction” (People v Smith, 58 AD3d 888, 888-889 [2009][internal quotation marks and citation omitted]). To justifyconsecutive sentences in this context, the People were requiredto establish, either through the indictment or the facts adducedduring the allocution, that defendant came into possession of theimages at separate and distinct times (see id. at 889). Here,the counts in the indictment to which defendant pleaded guiltycontained identical language as to the time, date and place ofpossession. Inasmuch as neither the indictment nor the factsadduced during the allocution establish that the digital imagescame into defendant’s possession at separate and distinct times,consecutive sentences were not authorized (see People v Dean, 8NY3d 929, 930-931 [2007]; People v Smith, 58 AD3d at 889).We are unpersuaded by defendant’s contention that hiswaiver of the right to appeal — in connection with his plea tothe charges in the superior court information — is invalid.Defendant acknowledged that he understood the separate anddistinct nature of the waiver of the right to appeal and had noquestions with regard thereto. Further, defendant executed awritten waiver of the right to appeal in open court, afterreviewing it with his counsel and confirming his understandingthereof. As such, defendant’s waiver of the right to appeal wasknowing, voluntary and intelligent (see People v Bryant, 28 NY3d1094, 1094-1095 [2016]; People v McCarthy, 159 AD3d 1189, 1190[2018]). Accordingly, defendant’s harsh and excessive challengeto his sentence for the grand larceny conviction is precluded bythe valid appeal waiver (see People v McCarthy, 159 AD3d at 1190;People v Brown, 156 AD3d 1248, 1249 [2017], lv denied 31 NY3d981 [2018]).Garry, P.J., McCarthy, Devine and Pritzker, JJ., concur.ORDERED that the judgment is modified, on the law, bydirecting that defendant’s sentences for possession of a sexualperformance by a child under counts 1, 2 and 3 of the indictmentshall run concurrently to each other, and, as so modified,affirmed.ENTER:Robert D. MaybergerClerk of the Court
