| People v Santiago |
| 2012 NY Slip Op 04598 [96 AD3d 1495] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CarlosSantiago, Jr., Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Thomas R. Morse, A.J.), renderedJune 30, 2008. The judgment convicted defendant, upon a jury verdict, of sexual abuse in thefirst degree (two counts) and unlawful imprisonment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawand as a matter of discretion in the interest of justice by reversing that part convicting defendantof sexual abuse in the first degree under the fourth count of the indictment and dismissing thatcount of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts of sexual abuse in the first degree (Penal Law § 130.65 [1]). Viewingthe evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although "anacquittal would not have been unreasonable" (Danielson, 9 NY3d at 348), "[w]here, ashere, witness credibility is of paramount importance to the determination of guilt or innocence,[we] must give '[g]reat deference . . . [to the jury's] opportunity to view thewitnesses, hear the testimony and observe demeanor' " (People v Harris, 15 AD3d 966, 967 [2005], lv denied 4NY3d 831 [2005], quoting Bleakley, 69 NY2d at 495). Contrary to defendant's furthercontention, the testimony of the prosecution witnesses was not incredible as a matter of law, thatis, it was not " 'impossible of belief because it [was] manifestly untrue, physically impossible,contrary to experience, or self-contradictory' " (People v Garafolo, 44 AD2d 86, 88[1974]; see People v Rumph, 93AD3d 1346, 1347 [2012]; People v Wallace, 306 AD2d 802, 802-803 [2003]).
We reject defendant's contention that County Court erred in refusing to suppress the in-courtidentification by the victim on the ground that it was based on an unduly suggestive photo arrayidentification procedure. Contrary to the People's contention, defendant preserved that contentionfor our review inasmuch as the suppression court "specifically confronted and resolved [the]issue" (People v Feingold, 7 NY3d288, 290 [2006]). We conclude, however, that the People met their initial burden ofestablishing the reasonableness of the police conduct with respect to the photo array, anddefendant failed to meet his ultimate burden of proving that the [*2]identification procedure was unduly suggestive (see generallyPeople v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]).
Defendant failed to preserve for our review his further contention that the indictment ismultiplicitous (see CPL 470.05 [2]). We nevertheless exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Asthe People correctly concede, the fourth count of the indictment, charging sexual abuse in thefirst degree, must be dismissed because where, as here, "the evidence . . . shows asingle, uninterrupted attack in which the attacker gropes several parts of a victim's body, theattacker may be charged with only one count of sexual abuse" (People v Alonzo, 16 NY3d 267,268 [2011]). We therefore modify the judgment accordingly.
Defendant contends that the court erred in sentencing him as a second felony offender. Atsentencing, defendant challenged the prior conviction from Pennsylvania solely upon the groundthat he would have been eligible to be adjudicated a youthful offender upon the conviction if ithad occurred in New York but that such relief was not available in Pennsylvania. On appeal,however, he contends that the Pennsylvania conviction would not constitute a conviction in NewYork because he was 15 years old at the time of conviction, and a 15-year-old could not beconvicted in New York of manslaughter in the second degree, one of the offenses encompassedby the Pennsylvania conviction of murder in the third degree (see 18 Pa Cons Stat Ann§ 2502 [c]).
The Court of Appeals has stated that, in order "[t]o determine whether a foreign crime isequivalent to a New York felony[,] the court must examine the elements of the foreign statuteand compare them to an analogous Penal Law felony, for '[i]t is the statute upon which theindictment was drawn that necessarily defines and measures the crime' " (People vGonzalez, 61 NY2d 586, 589 [1984], quoting People v Olah, 300 NY 96, 98 [1949]).The Court added, however, that, "[a]s an exception to the . . . rule [set forth inPeople v Olah, it has] permitted a sentencing court to go beyond the statute and scrutinizethe accusatory instrument in the foreign jurisdiction where the statute renders criminal not oneact but several acts which, if committed in New York, would in some cases be felonies" and inothers would not constitute felonies (id. at 590). Preservation is required when thedefendant's contention requires that the sentencing court determine "whether a particularout-of-State conviction is the equivalent of a New York felony[, which] may involve productionand examination of foreign accusatory instruments and, conceivably, the resolution of evidentiarydisputes, all in the context of comparisons with the law of other jurisdictions" (People vSamms, 95 NY2d 52, 57 [2000]). That is the case here, inasmuch as defendant contends thatthe Pennsylvania conviction encompasses several crimes, some of which he could not beconvicted upon in New York. Inasmuch as defendant failed to contend before the sentencingcourt that the Pennsylvania conviction would not constitute a conviction in New York based onhis age at the time of the crimes, he failed to preserve his contention for our review (seeid.), and we decline to exercise our power to review it as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). Present—Scudder, P.J., Smith, Fahey, Lindleyand Martoche, JJ.