| People v Bonner |
| 2012 NY Slip Op 03300 [94 AD3d 1500] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v HarrellBonner, Also Known as Damien Prophet, Also Known as Pete Waller, Appellant. (Appeal No.1.) |
—[*1] Harrell Bonner, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedJanuary 28, 2008. The judgment convicted defendant, upon a jury verdict, of promotingprostitution in the second degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him followinga jury trial of promoting prostitution in the second degree (Penal Law § 230.30 [1]) andassault in the second degree (§ 120.05 [2]). In appeal No. 2, defendant appeals from ajudgment convicting him, following the same jury trial, of three counts of murder in the seconddegree (§ 125.25 [1], [3]). We reject defendant's contention that County Court erred indenying his motion to sever the two murder counts relating to one victim from the remainingmurder count relating to the second victim. Even assuming, arguendo, that those counts were notproperly joinable pursuant to CPL 200.20 (2) (b), we nevertheless conclude that the offenseswere properly joinable given that they "are defined by the same or similar statutory provisionsand consequently are the same or similar in law" (CPL 200.20 [2] [c]; see People v June, 30 AD3d 1016,1017 [2006], lv denied 7 NY3d 813 [2006], reconsideration denied 7 NY3d 868[2006]). We further conclude that the court did not abuse its discretion in denying defendant'smotion for severance with respect to the murder counts "in the interest of justice and for goodcause shown" (CPL 200.20 [3]; see People v Mahboubian, 74 NY2d 174, 183 [1989]).There was not a "substantial difference in the quantum of proof presented with respect to theseparate" murders (People v McDougald, 155 AD2d 867 [1989], lv denied 75NY2d 870 [1990]; see CPL 200.20 [3] [a]), and defendant did not demonstrate that hehad a "genuine need to refrain" from testifying with respect to one of the murders (CPL 200.20[3] [b]). Although defendant contends that the court also erred in consolidating the twoindictments for trial, that contention is unpreserved for our review (see CPL 470.05 [2]),and it lacks merit in any event.
We reject defendant's further contention that he was deprived of a fair trial by the court'sMolineux ruling. The Molineux evidence admitted at trial was relevant toestablish defendant's [*2]motive for beating and killing thevictims, and to establish defendant's modus operandi and common scheme of using physicalabuse to instill fear and obedience in the prostitutes who worked for him (see People vMolineux, 168 NY 264, 293-294 [1901]). We further conclude that the court did not abuseits discretion in determining that the probative value of the evidence outweighed its potential forprejudice (see People v Alvino, 71 NY2d 233, 242 [1987]). Defendant failed to preservefor our review his challenge to the court's Sandoval ruling (see People v Caswell, 49 AD3d1257, 1258 [2008], lv denied 11 NY3d 735 [2008]; People v Hawkes, 39 AD3d 1209,1211 [2007], lv denied 9 NY3d 845 [2007]) and, in any event, his challenge is withoutmerit.
Defendant further contends that the court violated his right to confront witnesses against himby allowing the Deputy Chief Medical Examiner of Erie County to testify as to the cause of deathof one of the victims even though she did not perform the autopsy on that victim. According todefendant, he should have been allowed to confront the individual who performed the autopsy.Defendant failed to preserve that contention for our review (see People v Evans, 59 AD3d 1127, 1127-1128 [2009], lvdenied 12 NY3d 815 [2009]). We note in any event that any error in the admission of thetestimony is harmless (see generally People v Crimmins, 36 NY2d 230, 237 [1975]),particularly in view of the absence of prejudice suffered by defendant as a result of the admissionof that testimony (see generally People vBryant, 27 AD3d 1124, 1125-1126 [2006], lv denied 7 NY3d 753 [2006]). Inlight of the brutal and sadistic nature of defendant's crimes and his utter lack of remorse, wereject his challenges to the severity of the sentences imposed.
Finally, we have reviewed defendant's contentions raised in his pro se supplemental brief andconclude that they lack merit. Present—Scudder, P.J., Centra, Carni, Lindley andMartoche, JJ.