| People v Nelson |
| 2009 NY Slip Op 09096 [68 AD3d 1252] |
| December 10, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Glenn C.Nelson, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Chenango County (Sullivan, J.),rendered November 17, 2003, upon a verdict convicting defendant of the crimes of sodomy inthe first degree (four counts), sexual abuse in the second degree (three counts) and endangeringthe welfare of a child (two counts).
Following a jury trial, defendant was convicted of four counts of sodomy in the first degree,three counts of sexual abuse in the second degree and two counts of endangering the welfare of achild. The charges stemmed from his inappropriate sexual contact with a then 12-year-old boybetween August 2002 and September 2002. Sentenced as a second felony offender toconsecutive prison terms of 25 years on each of the four sodomy counts, to run concurrently withthe one-year sentences imposed on each of the remaining charges, he now appeals.
We reject defendant's contention that his statutory right to a speedy trial was violated. Wherea defendant is charged with a felony, CPL 30.30 requires the People to be ready for trial withinsix months of the commencement of the criminal action (see CPL 30.30 [1] [a];People v Cortes, 80 NY2d 201, 208 [1992]). A criminal action is commenced when thefirst accusatory instrument is filed, and "includes the filing of all further accusatory instrumentsdirectly derived from the initial one" (CPL 1.20 [16] [b]; see People v Sinistaj, 67 NY2d236, 239 [1986]). Thus, [*2]subsequent accusatory instrumentsthat are " 'directly derived' " from the first instrument will relate back to the first instrument forpurposes of assessing the People's compliance with their speedy trial obligations (People vSinistaj, 67 NY2d at 241 n 4; see People v Lomax, 50 NY2d 351, 356 [1980];People ex rel. Greenstein v Sheriff of Schenectady County, 220 AD2d 190, 193 [1996]).
Here, a felony complaint was issued on October 1, 2002 charging defendant with threecounts of sodomy in the first degree. Defendant was subsequently charged by a superior courtinformation with those same crimes and the People declared their readiness for trial in opencourt on March 31, 2003, within the six-month period permitted by CPL 30.30 (1) (a) (seePeople v Wilson, 86 NY2d 753, 754 [1995]). However, the People later presented charges tothe grand jury that resulted in an indictment, filed May 14, 2003, charging defendant with thosesame three counts of sodomy in the first degree, as well as additional crimes. Although thePeople's March 2003 announcement of readiness for trial was ineffective as to the new crimessubsequently charged in the indictment (see People v Johnson, 112 AD2d 1, 1 [1985],lv denied 66 NY2d 764 [1985]; People v Cruz, 111 AD2d 725, 726 [1985],lvs denied 66 NY2d 614 [1985], 67 NY2d 650 [1985]; see generally People vKendzia, 64 NY2d 331 [1985]), it satisfied their obligations with respect to the three countsof sodomy in the first degree contained in the indictment, since those counts were " 'directlyderived' " from the felony complaint (People v Sinistaj, 67 NY2d at 241 n 4; see People v Berry, 5 AD3d 866,867-868 [2004], lv denied 3 NY3d 637 [2004]; People v Morales, 309 AD2d1065, 1066 [2003], lv denied 1 NY3d 576 [2003]; People v Stone, 265 AD2d891, 892 [1999], lv denied 94 NY2d 907 [2000]). As no significant postreadiness delayschargeable to the People were established (see People v Carter, 91 NY2d 795, 799[1998]), defendant was not deprived of his statutory right to a speedy trial on the three sodomycounts.
To the extent that "the felony complaint and subsequently filed indictment allege[d] separateand distinct criminal transactions, the speedy trial time clock commence[d] to run upon the filingof the indictment with respect to the new charges" (People v Dearstyne, 230 AD2d 953,955 [1996], lvs denied 89 NY2d 921 [1996], 89 NY2d 1034 [1997]; see People v Fehr, 45 AD3d 920,922 [2007], lv denied 10 NY3d 764 [2008]; People ex rel. Greenstein v Sheriff ofSchenectady County, 220 AD2d at 193; People v Stone, 265 AD2d at 892-893).Since the People filed a statement of readiness on June 2, 2003, well within six months of theMay 14, 2003 filing date of the indictment, the People also complied with the requirements ofCPL 30.30 (1) (a) as to these new counts.
Defendant next asserts that he was deprived of a fair trial by comments made by theprosecutor during summation. "Reversal of a conviction for prosecutorial misconduct iswarranted only where a defendant has suffered substantial prejudice such that he [or she] wasdeprived of due process of law" (Peoplev McCombs, 18 AD3d 888, 890 [2005] [citations omitted]; see People vCiborowski, 302 AD2d 620, 622-623 [2003], lv denied 100 NY2d 579 [2003]). Weagree that, at times, the prosecutor made improper remarks that denigrated both defense counseland the defense (see People vWlasiuk, 32 AD3d 674, 681 [2006], lv dismissed 7 NY3d 871 [2006];People v LaPorte, 306 AD2d 93, 95 [2003]; People v Kent, 125 AD2d 590, 591[1986]). Furthermore, the prosecutor inappropriately attempted to appeal to the sympathy of thejury by asking the jury to "fight for [the victim]" during deliberations (see People vBhupsingh, 297 AD2d 386, 388 [2002]; People v Andre, 185 AD2d 276, 278[1992]). Although the summation was not free from error, we find that the unwarranted andimproper comments, even when considered cumulatively, were not so substantially prejudicial asto deprive defendant of a fair trial, particularly given the strength of the People's case and theoverwhelming proof of [*3]defendant's guilt (see People v Wilson, 61 AD3d1269, 1272 [2009]; People vThornton, 4 AD3d 561, 563 [2004], lv denied 2 NY3d 808 [2004]; People vCody, 260 AD2d 718, 722 [1999], lv denied 93 NY2d 1002 [1999]; People vHamilton, 227 AD2d 669, 672 [1996], lv denied 88 NY2d 1068 [1996]).
To that end, the victim provided detailed and descriptive testimony regarding the sexual actsthat defendant subjected him to on three distinct occasions between August 2002 and September2002. Moreover, defendant's brother testified that, in early September 2002, defendant revealedthat he had developed a "relationship" with the victim and that he had sex with the victim.Defendant's brother testified further that, although he insisted that defendant cease the"relationship," defendant continued to see the victim and soon thereafter admitted to againengaging in sexual conduct with the victim. Likewise, defendant's sister-in-law testified to aphone call she received from defendant in August or September 2002 wherein he confessed tohaving sexual relations with the victim, and the record reveals that defendant also admitted thesexual conduct to his pastor. Thus, in light of the uncontradicted and overwhelming evidence ofdefendant's guilt, we simply cannot conclude that there was a reasonable possibility that the jurywould have acquitted defendant had the improper comments not been made (see People vCrimmins, 36 NY2d 230, 237 [1975]; People v Dawkins, 240 AD2d 962, 963[1997], lv denied 90 NY2d 903 [1997]; People v Cunningham, 222 AD2d 727,731 [1995], lv denied 87 NY2d 1018 [1996]; People v Perez, 176 AD2d 165,166 [1991], lv denied 79 NY2d 862 [1992]; compare People v De Vito, 21 AD3d 696, 699-701 [2005]; People v Gorghan, 13 AD3d 908,909-911 [2004], lv dismissed 4 NY3d 798 [2005]; People v Levandowski, 8 AD3d 898, 900-901 [2004]; People vRussell, 307 AD2d 385, 386-387 [2003]). We emphasize that, had the People's case not beenso strong, the extent of the prosecutor's comments may well have led to a different result here.
Finally, defendant's sentence of maximum consecutive terms—reduced to anaggregate prison term of 50 years by operation of law (see Penal Law § 70.30 [1][e] [vi])—was not harsh or excessive under the circumstances. Although defendant wasoffered a prison sentence of 18 years during plea negotiations, " '[t]he mere fact that a sentenceimposed after trial is greater than that offered in connection with plea negotiations is not proofthat defendant was punished for asserting his right to trial' " (People v Chilson, 285AD2d 733, 735 [2001], lvs denied 97 NY2d 640 [2001], 97 NY2d 752 [2002], quotingPeople v Simon, 180 AD2d 866, 867 [1992], lv denied 80 NY2d 838 [1992];see People v Saunders, 309 AD2d 1063, 1065 [2003]). Rather, County Court's sentencewas based on, among other legitimate considerations, defendant's prior conviction for similarsexual conduct towards a minor boy in Ohio, his conceded inability to control his sexual urges,and the abhorrent nature of his sexual exploitation of this young victim on multiple occasions(see People v Merck, 63 AD3d1374, 1376 [2009]; People vChappelle, 14 AD3d 728, 729 [2005], lv denied 5 NY3d 786 [2005]). Findingneither an abuse of discretion nor the existence of any extraordinary circumstances warrantingmodification (see People v Dunton,30 AD3d 828, 830 [2006], lv denied 7 NY3d 847 [2006]; People v Dalton, 27 AD3d 779,783 [2006], lvs denied 7 NY3d 754, 811 [2006]), we decline to disturb the sentence.
Defendant's remaining contentions are unpreserved for our review.
Cardona, P.J., Kane, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.