| People v Dayton |
| 2009 NY Slip Op 07437 [66 AD3d 797] |
| October 13, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlexDayton, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel; RachelWeismann on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.),rendered January 3, 2007, convicting him of criminal sexual act in the first degree (two counts),aggravated sexual abuse in the second degree, sexual abuse in the first degree, endangering thewelfare of a child, and petit larceny, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The County Court properly denied the defendant's motion to sever certain counts in theindictment, since the nature of the proof for each of the offenses was material and admissible asevidence upon the trial of the other counts in the indictment (see CPL 200.20 [2] [b]).Since the offenses were properly joined in one indictment from the outset, the court lacked thestatutory authority to sever them (see CPL 200.20 [3]; People v Bongarzone, 69NY2d 892, 895 [1987]; People vSalnave, 41 AD3d 872, 873 [2007]).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5),we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that a portion of his confession should have been suppressedbecause Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) werenot readministered to him immediately prior to his making that statement is without merit."[W]here a person in police custody has been issued Miranda warnings and voluntarilyand intelligently waives those rights, it is not necessary to repeat the warnings prior tosubsequent questioning within a reasonable time thereafter, so long as the custody has remainedcontinuous" (People v Hasty, 25AD3d 740, 741 [2006] [internal quotation marks and citations omitted]). Here, the evidenceadduced at the Huntley hearing (see People v Huntley, 15 NY2d 72 [1965])demonstrated that the defendant waived his Miranda rights on three occasions prior tomaking the statement in question within a reasonable time thereafter, and that he wascontinuously in police custody.[*2]
Furthermore, the County Court did not err in denying thedefendant's application, made on the eve of trial and 299 days after he entered a plea of notguilty to the indictment, for the appointment of experts. The decision rested in the trial court'sdiscretion (see People v Almonor, 93 NY2d 571 [1999]; People v Berk, 88NY2d 257, 265-266 [1996], cert denied 519 US 859 [1996]; People v Di Donato,87 NY2d 992 [1996]; People v Hill,10 AD3d 310, 314 [2004]), and given the lateness of the application and the defendant'sfailure to offer any good cause for the delay, the court providently exercised that discretion.
The defendant received the effective assistance of counsel, under both the state constitutionalstandard (see People v Caban, 5NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708, 712 [1998]; Peoplev Baldi, 54 NY2d 137, 146-147 [1981]), and the federal constitutional standard (seeStrickland v Washington, 466 US 668 [1984]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Contrary to the defendant's contention, the court properly imposed consecutive sentences uponthe convictions of criminal sexual act in the first degree, charged in the first two counts of theindictment, as each count involved a separate sexual act constituting a distinct offense (see People v Colon, 61 AD3d772, 773 [2009]; People v Gersten, 280 AD2d 487, 487 [2001]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Rivera, J.P., Florio, Miller and Austin, JJ., concur.