The opinion
Clark, J.
(concurring in part and dissenting in part). We disagree with the majority’s conclusion that the legality of the consecutive sentences to which defendant agreed cannot be established by looking to the allegations in the underlying sworn felony complaints, where, as here, defendant waived indictment and agreed to be prosecuted by a superior court information (hereinafter SCI). Accordingly, insofar as the majority modifies the sentence imposed upon defendant, we respectfully dissent.
As explained by the majority, in determining whether consecutive sentences may be lawfully imposed, courts must first look to the statutory definitions of the crimes of which the defendant has been convicted to “determine whether the actus reus element is, by definition, the same for both offenses . . . , or if the actus reus for one offense is, by definition, a material element of the second offense” (People v Laureano, 87 NY2d 640, 643 [1996]; see Penal Law § 70.25 [2]; People v Couser, 28 NY3d 368, 375 [2016]). Even if the statutory elements overlap, *1067 the People may nevertheless satisfy their obligation of establishing the legality of consecutive sentences “by showing that the acts or omissions committed by [the] defendant were separate and distinct acts” (People v Laureano, 87 NY2d at 643 [internal quotation marks omitted]; see People v Dean, 8 NY3d 929, 930-931 [2007]). The Court of Appeals has held that, in the plea context, the People may rely on the allegations in the indictment and the facts adduced at the plea allocution to demonstrate that the acts or omissions were separate and distinct acts, so long as the defendant has pleaded guilty to one or more counts alleged in the indictment (see People v Dean, 8 NY3d at 931 ; People v Laureano, 87 NY2d at 644 ; People ex rel. Maurer v Jackson, 2 NY2d 259, 265 [1957]). “Where [the] defendant has been convicted upon a plea to a lesser offense than that charged in the indictment, the People may rely only on those facts and circumstances admitted during the plea allocution” (P eople v Laureano, 87 NY2d at 644 [citation omitted]; see People v Griffin, 7 NY2d 511, 515 [1960]).
The Court of Appeals has not affirmatively stated that sentencing courts may, in addition to the facts and circumstances admitted during the plea allocution, look to the allegations in other types of accusatory instruments to determine whether the acts or omissions underlying the convictions were separate and distinct. However, the Third Department, as well as the Second Department, has held that the People may rely on the information in the SCI to satisfy their burden of establishing that the underlying acts or omissions were separate and distinct (see People v Guzman-Moore, 144 AD3d 1267, 1268 [3d Dept 2016], lv denied 29 NY3d 949 [2017]; People v Woods, 141 AD3d 954, 956 [3d Dept 2016], lv denied 28 NY3d 1076 [2016]; People v Bullip, 59 AD3d 561 , 561-562 [2d Dept 2009], lv denied 12 NY3d 814 [2009]; see also People v Pardy, 113 AD3d 1003, 1003 [3d Dept 2014]).
In our view, where indictment has been waived and the defendant consents to prosecution by way of an SCI (see CPL 195.10), the People should be entitled to rely on the sworn felony complaint — statutorily defined as an accusatory instrument (see CPL 1.20 [1]) — to establish that the subject crimes are separate and distinct, so long as one or more of the charges in the SCI and the felony complaint are the same. Here, the record demonstrates that, upon divestiture, the local criminal court transmitted, among other things, the underlying sworn felony complaints to County Court (see CPL 180.30). Thus, at the time that defendant knowingly, voluntarily and intelligently waived indictment, agreed to be prosecuted by an SCI *1068 and pleaded guilty to the SCI, County Court, as well as the parties, were aware that the crimes charged in the SCI were the same as those alleged in the corresponding felony complaints and that the felony complaints established that the actus reus of each of the charged offenses were separate and distinct. In particular, the felony complaints accused defendant of sexual abuse in the first degree for “insert [ing] his fingers into the [victim’s] vagina” and criminal sexual act in the second degree for forcing the victim to “perform oral sex on him.” Inasmuch as the felony complaints clearly provide the factual basis to conclude that the acts to which defendant pleaded guilty were separate and distinct, we find that the consecutive sentences imposed upon — and agreed to by — defendant are lawful. In view of the foregoing, and because we agree with the majority that the remainder of defendant’s arguments lack merit, we would affirm the judgment of conviction and the order.
Devine, J., concurs.
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.
Ordered that the order is affirmed.