| People v Lucie |
| 2008 NY Slip Op 02339 [49 AD3d 1253] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TimothyLucie, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedJune 16, 2004. The judgment convicted defendant, upon a jury verdict, of rape in the first degree(two counts), sodomy in the first degree (two counts), and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,two counts of rape in the first degree (Penal Law § 130.35 [1], [4]), defendant contendsthat he was denied a fair trial as the result of cumulative errors made by County Court at trial. Wereject that contention. In support thereof, defendant contends, inter alia, that the court improperlyintruded upon and "bull[ied] the defense" during voir dire. That contention is without merit.Indeed, the record establishes that the court properly questioned certain prospective jurors in anattempt "to elicit some unequivocal assurance" that they would be able to render a fair verdict(People v Bludson, 97 NY2d 644, 646 [2001]; see CPL 270.15 [1] [c]).Defendant also contends that the court erred in failing to reopen the suppression hearing in orderto present the testimony of the attorney who represented defendant at that hearing. Defendantfailed to preserve that contention for our review (see People v Highsmith, 259 AD2d1006 [1999], lv denied 93 NY2d 925 [1999]) and, in any event, it lacks merit. Theattorney's testimony "would not have changed the hearing's outcome" and thus defendant was notprejudiced by the court's refusal to reopen the suppression hearing (People v Tucker, 41 AD3d 210,212 [2007], lv denied 9 NY3d 882 [2007], cert denied 552 US —, 128 SCt 1094 [2008]).
Contrary to defendant's further contention, the court properly allowed the People to elicittestimony with respect to defendant's polygraph examination. The evidence concerning the factssurrounding the examination was relevant with respect to the issue whether defendant's statementwas coerced (see People v Sohn, 148 AD2d 553, 556 [1989], lv denied 74 NY2d747 [1989]). In addition, although testimony was admitted of the results of the examination, thecourt gave comprehensive instructions to the jury that the polygraph evidence was to beconsidered not for its truth or falsity but, rather, was to be considered only with respect todefendant's state of mind and the voluntariness of the statement (see People v Young, 186AD2d 699, 700 [1992], lv denied 81 NY2d 767, 850 [1993]).[*2]
We reject defendant's further contention with respect tothe court's refusal to conduct a Frye hearing (see generally People v Hopkins, 46 AD3d 1449 [2007]; People v Rogers, 8 AD3d 888, 892[2004]) and the court's ruling allowing the People to introduce evidence concerning defendant'sprior uncharged crimes (see People v DeVito, 21 AD3d 696, 699 [2005]; see generally People v Molineux, 168 NY 264,293 [1901]). Defendant's remaining contentions concerning the court's alleged cumulative errorsare not preserved for our review (see CPL 470.05 [2]), and we decline to exercise ourpower to review those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Defendant failed to preserve for our review his further contention thathe was denied a fair trial based on prosecutorial misconduct on summation (see People v MacLean, 48 AD3d1215 [2008]), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Insofar as defendantcontends that the prosecutor improperly inquired into Family Court proceedings, the courtsustained defendant's objection before the witness answered the prosecutor's question, and thusthe alleged error must be deemed to have been corrected to defendant's satisfaction (seePeople v Williams, 46 NY2d 1070 [1979]). Defendant further contends that the court erredin denying his motion for a mistrial based on the statement of the Medical Examiner concerninga contributing cause of the victim's death. We reject that contention inasmuch as the recordestablishes that the testimony was a "surprise to everyone" and not the result of any "willfulmisconduct by the People" (People vJacobs, 37 AD3d 868, 870 [2007]). Moreover, the court prevented any prejudice todefendant by sustaining his objection, striking the testimony, and providing curative instructionsboth following defendant's motion and during the court's jury instructions at the close of proof(see People v Grant, 254 AD2d 639, 640 [1998], lv denied 92 NY2d 1032[1998]; see also People Ortiz, 41 AD3d 276 [2007], lv denied 9 NY3d 879[2007], cert denied 552 US —, 128 S Ct 631 [2007]).
Finally, we reject the contentions of defendant that he was denied effective assistance ofcounsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]) and that the court erredin imposing consecutive sentences for the convictions for rape in the first degree and sodomy inthe first degree. "[T]he offenses were separate and distinct acts, notwithstanding that theyoccurred in the course of a continuous incident" (People v Wynn, 35 AD3d 283, 284 [2006], lv denied 8NY3d 928 [2007]). Present—Martoche, J.P., Lunn, Fahey, Peradotto and Pine, JJ.