PEOPLE v. TORTORICE

Judgment unanimously affirmed. Memorandum: Defendant was convicted of one count of sodomy in the second degree and six counts of endangering the welfare of a child, and was sentenced as a second felony offender to an indeterminate term of from three to six years on the sodomy conviction and to a concurrent definite term of nine months on one count of endangering the welfare of a child. On the remaining five counts of endangering the welfare of a child, he was sentenced to five nine-month definite terms, to be served consecutive to each other and to the indeterminate sentence. Defendant argues on appeal that, pursuant to an amendment to Penal Law § 70.35, his definite sentences must merge at the outset with his indeterminate sentence, contrary to our holding in People v Moore ( 147 A.D.2d 971). Although our holding in Moore is no longer valid, the amendment to Penal Law § 70.35 does not require any action by this Court. The Department of Correctional Services must calculate the period of incarceration in accordance with Penal Law § 70.35, but that statute does not restrict the court's ability to impose consecutive sentences (see, e.g., People v Moore, 61 N.Y.2d 575, 578).

We have examined defendant's remaining arguments on appeal and find them to be without merit.