| People v Rodriguez |
| 2008 NY Slip Op 02643 [49 AD3d 433] |
| March 20, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v TitoRodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Eleanor J. Ostrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered June 30,2005, convicting defendant, after a jury trial, of attempted rape in the first degree, attemptedcriminal sexual act in the first degree (two counts), sexual abuse in the first degree (two counts),and assault in the second degree, and sentencing him, as a persistent violent felony offender, tofive consecutive terms of 25 years to life concurrent with a sixth term of 25 years to life,unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony. Thehearing court properly exercised its discretion (see People v Chipp, 75 NY2d 327, 337[1990], cert denied 498 US 833 [1990]) in refusing to permit defendant to call as awitness a police sketch artist who had worked with the victim to create a wanted poster. "[T]hepurpose and function of the Wade hearing is to determine whether a police-arrangedpretrial identification procedure such as a lineup, was unduly suggestive" (id.). Thecreation of the sketch itself was not an identification procedure (People v Pagan, 248AD2d 325 [1998], affd 93 NY2d 891 [1999]). There is no indication that the sketch wascreated on the basis of anything other than information supplied by the victim, or any reason tobelieve the process of creating a sketch impaired the fairness of the subsequent lineup. We findnothing in People v Maldonado (97 NY2d 522 [2002]), a case dealing with the hearsayimplications of admitting a sketch at trial, that supports defendant's present position. Thephotographs of the lineup show that the characteristics of the participants were reasonablysimilar, and any differences were not sufficient to create a substantial likelihood that defendantwould be singled out for identification (see Chipp, 75 NY2d at 336; People vHolmes, 291 AD2d 247 [2002], lv denied 98 NY2d 676 [2002]); defendant'sassertion that he was the only participant who fit the victim's description is without merit. Wehave considered and rejected defendant's remaining arguments concerning the suppressionhearing and the court's determination.
None of the evidence relating to DNA violated defendant's right to confront the witnessesagainst him (see People v Rawlins, 10 NY3d 136 [2008]).
By failing to object, by making general objections, and by failing to request further reliefafter an objection was sustained, defendant did not preserve his present challenges to the [*2]People's summation and we decline to review them in the interest ofjustice. As an alternative holding, we also reject them on the merits (see People vOverlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]).
The court properly imposed consecutive sentences for the five sexual offenses because theywere "separate and distinct acts, notwithstanding that they occurred in the course of a continuousincident" (People v Wynn, 35 AD3d283, 284 [2006], lv denied 8 NY3d 928 [2007]). Each of the sex crimes was aseparate "act" within the meaning of Penal Law § 15.00 (1) and § 70.25 (2), andnothing in the Penal Law requires any type of interval or interruption in a continuous attack inorder for the individual acts to qualify as separate for sentencing purposes (see e.g. People vBrathwaite, 63 NY2d 839, 843 [1984] [two victims killed by separate shots fired in singleincident]). Concur—Tom, J.P., Friedman, Nardelli, Catterson and Moskowitz, JJ.