| People v Burton |
| 2011 NY Slip Op 03442 [83 AD3d 1562] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Daryl L.Burton, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedJanuary 25, 2010. The judgment convicted defendant, upon a jury verdict, of sexual abuse in thefirst degree (two counts), attempted assault in the second degree, assault in the second degree(three counts), criminal sexual act in the first degree (two counts), rape in the first degree andcriminal sale of a controlled substance in the third 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 of twocounts of sexual abuse in the first degree (Penal Law § 130.65 [1]) and one count ofattempted assault in the second degree (§§ 110.00, 120.05 [1]) arising from anincident involving one complainant, and three counts of assault in the second degree (§120.05 [2]), two counts of criminal sexual act in the first degree (§ 130.50 [1]), and onecount each of rape in the first degree (§ 130.35 [1]), and criminal sale of a controlledsubstance in the third degree (§ 220.39 [2]) arising from separate incidents involvinganother complainant. Contrary to defendant's contention, County Court properly denied hismotion seeking to sever the three counts of the indictment involving one complainant from thecounts involving the other complainant. "The charges were properly joined pursuant to CPL220.20 (2) (b) on the ground that the defendant's modus operandi with respect to each of thesexual assaults demonstrated a distinctive pattern" (People v Hussain, 35 AD3d 504, 505 [2006], lv denied 8NY3d 946 [2007]; see People vComfort, 31 AD3d 1110, 1112 [2006], lv denied 7 NY3d 847 [2006]). "In anyevent, [certain] offenses [involving each complainant] also were 'the same or similar in law'(CPL 200.20 [2] [c]), and defendant failed to show good cause for severance" (People vFontanez, 278 AD2d 933, 935 [2000], lv denied 96 NY2d 862 [2001]; see People v Cornell, 17 AD3d1010, 1011 [2005], lv denied 5 NY3d 805 [2005]; People v Lovett, 303AD2d 952 [2003], lv denied 100 NY2d 584 [2003]).
We also reject defendant's contention that he was denied effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]). Contrary to defendant's furthercontention, the court was authorized to direct that the sentence imposed for attempted assault inthe second degree run consecutively with the sentences imposed for sexual abuse in the firstdegree. Although the attempted [*2]assault and sexual abuse "'took place over a continuous course of activity, they constituted separate and distinct acts,' " andneither crime was a material element of the other (People v Smith, 269 AD2d 778, 778[2000], lv denied 95 NY2d 804 [2000]). Finally, the sentence is not unduly harsh orsevere. Present—Scudder, P.J., Centra, Carni, Sconiers and Green, JJ.