| People v Cerda |
| 2010 NY Slip Op 08452 [78 AD3d 539] |
| November 18, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v LeonelCerda, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered December 15,2008, convicting defendant, after a jury trial, of predatory sexual assault against a child (two counts)and attempted disseminating indecent material to minors in the first degree, and sentencing him to anaggregate term of 10 years to life, unanimously affirmed.
Defendant was not deprived of his constitutional right to disclosure of exculpatory or impeachingevidence when, after an in camera examination of the victim's medical records, the court redacted ahandwritten notation that read as follows: "In year 2000, report of sexual abuse by father unfounded."Defendant concedes that this notation only would have been a starting point for investigation, but arguesthat, had it been disclosed, it could have led to admissible evidence that the victim made, or caused themaking of, a false sexual abuse claim about her father, and that this evidence might have cast doubt onthe credibility of her allegations against defendant (see generally People v Mandel, 48 NY2d952, 953 [1979], cert denied 446 US 949 [1980]). However, defendant's assertion that aninvestigation might have revealed evidence of exculpatory or impeachment value is entirely speculative.In any event, defendant has not shown any reasonable possibility that the outcome of the trial wouldhave been different even if such an investigation had revealed that seven years before the incidentsinvolving defendant, the victim, then four or five years old, falsely accused her father of sexual abuse.Furthermore, there was overwhelming evidence of defendant's guilt, including his detailed written andvideotaped confessions, for which he gave an implausible explanation at trial.
The indictment originally included counts charging the class B felonies of rape in the first degree(Penal Law § 130.35 [4]) and criminal sexual act in the first degree (Penal Law § 130.50[4]). Since those charges were based on the theory that defendant was 18 years old or more while thevictim was less than 13 years old, they had the identical elements as the class A-II felony of predatorysexual assault against a child (Penal Law § 130.96). The court did not submit the rape andcriminal sexual act counts to the jury. On appeal, defendant argues that the prosecutor was required tochoose between these sets of counts prior to trial, and that the presence of the additional countssuggested to the jury a higher level of culpability. Defendant also argues that there was a reasonableview of the evidence, under the theory discussed in [*2]People vDiscala (45 NY2d 38, 43 [1978] [crimes with identical elements may differ as to "heinous quality,"possibly presenting jury question]), that he was guilty of the class B sex crimes but not the class A-IIfelony, so that the former crimes should have been submitted as lesser included offenses. Healternatively argues that they should have been submitted as noninclusory concurrent counts. Since thearguments defendant makes on appeal are entirely different from those he made before and during thetrial concerning the presence and submission of these sets of counts, he has not preserved any of hispresent claims and we decline to review them in the interest of justice. As an alternative holding, wealso reject them on the merits. Defendant has not shown that he was prejudiced by the timing of thecourt's dismissal of the rape and criminal sexual act counts, or that the court was obligated to submitthem to the jury.
The challenged portions of the People's summation constituted permissible arguments for creditingthe testimony of the People's witnesses and discrediting that of defendant (see People vOverlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People vD'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]), andany errors were harmless in view of the overwhelming evidence. Concur—Mazzarelli, J.P.,Saxe, McGuire, Freedman and Abdus-Salaam, JJ.