| People v Flores |
| 2011 NY Slip Op 02595 [83 AD3d 1460] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ramon Flores,Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Theresa L. Prezioso of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered March6, 2003. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the firstdegree, rape in the first degree (two counts), attempted sodomy in the first degree (two counts)and sodomy in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by reversing that part convicting defendantof attempted sodomy in the first degree under count three of the indictment and dismissing thatcount of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofone count each of sexual abuse in the first degree (Penal Law § 130.65 [3]) and sodomy inthe first degree (former § 130.50 [3]), and two counts each of rape in the first degree(§ 130.35 [3]) and attempted sodomy in the first degree (§ 110.00, former §130.50 [3]). The evidence presented at trial established that, over the course of a month,defendant subjected a nine-year-old girl to various sexual acts on three separate occasions.Defendant's contention that he was denied his right to due process by preindictment delay isunpreserved for our review (see Peoplev Peck, 31 AD3d 1216 [2006], lv denied 9 NY3d 992 [2007]). We decline toexercise our power to review defendant's contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]), particularly in view of the fact that the lack ofpreservation deprived the People of an opportunity to refute defendant's claims of prejudice andto demonstrate that there were legitimate reasons for the delay.
We reject defendant's further contention that the conviction of sexual abuse in the first degreeand rape in the first degree under the first two counts of the indictment must be reversed becausethe counts are "multiplicitous." The two counts are "non-inclusory concurrent counts, and thusboth charges and convictions can stand" (People v Scott, 12 AD3d 1144, 1145 [2004], lv denied 4NY3d 767 [2005]). Defendant failed to preserve for our review his contention that the evidenceis legally insufficient to support the conviction of attempted sodomy in the first degree undercount three of the indictment because he failed to renew his motion for a trial order of dismissalafter presenting evidence (see [*2]People v Hines, 97NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). We nevertheless exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]), and we agree with defendant that reversal of the conviction of thatcount is required. We therefore modify the judgment accordingly. The victim testified thatdefendant told her to put her mouth on his penis but that he did not touch her, and she furthertestified that, when she told him that she would not do so, she merely walked away. Whiledefendant thereafter physically restrained the victim and had intercourse with her by forciblecompulsion, for which he was convicted of rape, the evidence is legally insufficient to establishthat defendant came " 'dangerously close' " to committing sodomy (People v Lamagna, 30 AD3d1052, 1053 [2006], lv denied 7 NY3d 814 [2006]). We have considered defendant'sremaining contentions concerning the alleged legal insufficiency of the evidence and concludethat they are without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We also reject defendant's contention that he was denied effective assistance of counselbased on defense counsel's failure to hire an expert witness to refute the testimony offered at trialby the People's experts. Although we recently concluded in People v Okongwu (71 AD3d 1393, 1395 [2010]) that defensecounsel was ineffective based in part on the failure to obtain an expert witness, defendant'sreliance on that case is misplaced. Here, in contrast to Okongwu, defense counseleffectively cross-examined the People's experts and raised certain areas of possible doubt arisingfrom their testimony. We thus conclude that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We further conclude that defendant was not deprived of a fair trial by prosecutorialmisconduct on summation. Contrary to defendant's contentions, none of the prosecutor'scomments denigrated the defense (see People v Jackson, 239 AD2d 948 [1997], lvdenied 90 NY2d 940 [1997]), and defendant was not entitled to his own copy of thevideotape of the victim's testimony that was presented to the grand jury, which counsel wasafforded an opportunity to view (see People v Smith, 289 AD2d 1056, 1058 [2001],lv denied 98 NY2d 641 [2002]). Moreover, having reviewed the video, we conclude thatit complies with the mandates of CPL 190.32. Finally, the sentence is not unduly harsh or severe.Present—Smith, J.P., Fahey, Peradotto, Lindley and Martoche, JJ.