State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 31, 2014 105793 

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THE PEOPLE OF THE STATE OF

NEW YORK,

 Respondent,

 v MEMORANDUM AND ORDER

ERIC MOON,

 Appellant.

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Calendar Date: May 30, 2014

Before: Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

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Theodore J. Stein, Woodstock, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan

Gudesblatt Lamb of counsel), for respondent.

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Stein, J.P.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered June 20, 2012, convicting defendant upon

his plea of guilty of the crime of assault in the second degree

(two counts).

Defendant was charged in an indictment with two counts of

assault in the first degree and two counts of assault in the

second degree, arising from an incident in July 2011 during which

his codefendants shot into a crowd with a shotgun and a rifle and

seriously injured two people. Thereafter, defendant pleaded

guilty to both counts of assault in the second degree in exchange

for a prison term of six years followed by five years of

postrelease supervision on each count, to be served

consecutively, and waived his right to appeal. Prior to
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sentencing, defendant moved to withdraw his plea. That motion

was denied, and County Court thereafter sentenced defendant, as a

second felony offender, to the agreed-upon term. Defendant now

appeals. 

We affirm. To the extent that defendant contends that the

indictment was jurisdictionally defective, we note that an

indictment will be found defective when it fails to charge the

defendant with the commission of a particular crime. However,

"[w]here an indictment count incorporates by reference the

statutory provision applicable to the crime intended to be

charged, it has been repeatedly held that this is sufficient to

apprise the defendant of the charge and, therefore, renders the

count jurisdictionally valid" (People v Cruz, 104 AD3d 1022, 1023

[2013] [internal quotation marks and citation omitted]). Here,

the counts of the indictment to which defendant pleaded recite,

among other things, the specific section of the Penal Law under

which defendant was charged and, accordingly, the indictment was

not jurisdictionally defective (see People v Cruz, 104 AD3d at

1023-1024; People v Brown, 75 AD3d 655, 656 [2010]). Further,

defendant's challenge to the factual sufficiency of the

indictment, which amounts to a nonjurisdictional defect, is

foreclosed by his guilty plea (see People v Olmstead, 111 AD3d

1063, 1064 [2013]; People v Cruz, 104 AD3d at 1024).

Lastly, we reject defendant's contention that the

imposition of consecutive sentences was illegal. Pursuant to

Penal Law § 70.25 (2), sentences must run concurrently for two or

more offenses committed through a single act or omission. 

However, consecutive sentences may be imposed when "'the acts

involved, though part of a continuous course of conduct, can be

separated into separate and distinct events'" (People v Snyder,

91 AD3d 1206, 1215 [2012], lv denied 19 NY3d 968 [2012], cert

denied ___ US ___, 133 S Ct 791 [2012], quoting People v

Williams, 51 AD3d 1141, 1145 [2008], lvs denied 10 NY3d 959, 965

[2008]). Here, considering defendant's allocution wherein he

admitted that multiple shots were fired and the absence of any

contention that the same bullet injured both victims, as well as

the fact that defendant pleaded guilty with the understanding

that the sentences for each assault would be imposed

consecutively, County Court did not err in concluding that the
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shootings constituted separate and distinct acts and, thus, in

imposing consecutive sentences (see People v Brathwaite, 63 NY2d

839, 842-843 [1984]; People v Holmes, 92 AD3d 957, 957 [2012],

lvs denied 19 NY3d 961, 967 [2012]).

McCarthy, Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court