| People v Buccina |
| 2009 NY Slip Op 03568 [62 AD3d 1252] |
| May 1, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v SantinoBuccina, 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.), renderedJuly 19, 2006. The judgment convicted defendant, upon a jury verdict, of rape in the first degree(three counts) and conspiracy in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofthree counts of rape in the first degree (Penal Law § 130.35 [1]) and one count ofconspiracy in the fourth degree (§ 105.10 [1]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to the further contention ofdefendant, County Court did not abuse its discretion in refusing to sever his trial from that of hiscodefendants. The evidence against defendant and his codefendants was essentially identical,and the respective defenses were not in irreconcilable conflict (see generally People vMahboubian, 74 NY2d 174, 183-185 [1989]).
Defendant failed to preserve for our review his contention that he was denied his right to afair trial when the court denied his motion to subpoena the psychiatric records of an accomplicewho testified against him. In any event, the record belies the contention of defendant that hemade such a motion and the record establishes that he in fact cross-examined the accompliceconcerning the accomplice's psychiatric condition and medications. Contrary to defendant'sfurther contention, the court did not abuse its discretion in permitting the People's expert totestify with respect to rape trauma syndrome. Such testimony "may be admitted to explainbehavior of a victim that might appear unusual or that jurors may not be expected to understand"(People v Carroll, 95 NY2d 375, 387 [2000]; see also People v Hryckewicz, 221AD2d 990 [1995], lv denied 88 NY2d 849 [1996]).
We conclude that the court properly refused to dismiss the indictment for lack ofgeographical jurisdiction (see CPL 20.40). The People met their burden of establishingby a preponderance of the evidence that defendant and his accomplices conspired to rape thevictim in Onondaga County (see CPL 20.40 [1] [b]; see generally People vGiordano, 87 NY2d 441, 446 [1995]), [*2]and they alsoestablished that the rape occurred in a private vehicle during the course of a trip extendingthrough multiple counties, including Onondaga County (see CPL 20.40 [4] [g];People v Curtis, 286 AD2d 901 [2001], lv denied 97 NY2d 728 [2002]).
We reject the further contention of defendant that he was denied his right to testify before thegrand jury and thus that the court erred in denying his motion to dismiss the indictment on thatground. The record establishes that defendant refused to testify before the grand jury after he wasinformed that, pursuant to the policy of the jail where he was confined, he would not be allowedto change into street clothes before being transported to the grand jury. Inasmuch as defendantchose not to testify before the grand jury, it cannot be said that he was denied his statutory rightto do so (see CPL 190.50 [5]). Further, to the extent that the policy of refusing to allowdefendant to testify before the grand jury in street clothes relates to the integrity of the grand juryproceeding (see CPL 210.35 [5]), we note that, by his own conduct in refusing to testify,defendant has rendered it impossible for us to determine on the record before us whether such apolicy "fail[ed] to conform to the requirements of article [190] to such degree that the integrity[of the grand jury proceeding was] impaired and prejudice to the defendant may [have]result[ed]" (CPL 210.35 [5]). Present—Scudder, P.J., Peradotto, Green and Gorski, JJ.