| People v Ross |
| 2008 NY Slip Op 09275 [56 AD3d 380] |
| November 25, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Ross, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Ann Donnelly of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered October 10,2006, convicting defendant, after a jury trial, of two counts of criminal sexual act in the seconddegree, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years,unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility, including its evaluation ofinconsistencies in testimony and the victim's explanation for her prior inconsistent statements.
The court properly exercised its discretion in precluding defendant from offering, as evidenceof his alleged consciousness of innocence, testimony that, after consultation with his attorney, heagreed to comply with the prosecutor's request for a DNA sample without requiring theprosecutor to make a CPL 240.40 (2) discovery motion. Defendant's agreement to providediscovery voluntarily where he would have, in any event, been required by law to provide it wasdevoid of probative value as to his asserted consciousness of innocence (see People vJardin, 154 Misc 2d 172, 174-175 [1992], affd 216 AD2d 105 [1995], affd88 NY2d 956 [1996]; see also People vDiMaria, 22 AD3d 229 [2005], lv denied 6 NY3d 775 [2006]; People vTorres, 289 AD2d 136 [2001], lv denied 97 NY2d 762 [2002]).
The imposition of mandatory surcharges and fees by way of court documents withoutmention in the court's oral pronouncement of sentence was lawful (see People vWashington, 51 [*2]AD3d 521 [2008], lv granted 10NY3d 965 [2008]).
We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Gonzalez,Moskowitz, Acosta and Renwick, JJ.