| People v Lane |
| 2013 NY Slip Op 03212 [106 AD3d 1478] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRondula Lane, Appellant. |
—[*1] Rondula Lane, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.),rendered August 9, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal sexual act in the first degree (four counts), burglary in the second degree andsexual abuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of four counts of criminal sexual act in the first degree (Penal Law §130.50 [1]), and one count each of burglary in the second degree (§ 140.25 [2])and sexual abuse in the first degree (§ 130.65 [1]). We reject defendant'scontention that County Court erred in refusing to suppress his statements to the police.Contrary to defendant's contention, the evidence introduced at the suppression hearingfails to establish that he " 'was intoxicated to the degree of mania, or of being unable tounderstand the meaning of his statements' " (People v Schompert, 19 NY2d 300,305 [1967], cert denied 389 US 874 [1967]; see People v Lake, 45 AD3d 1409, 1410 [2007], lvdenied 10 NY3d 767 [2008]). Defendant's reliance on evidence introduced at trial insupport of his contention is misplaced. It is well settled that "evidence subsequentlyadmitted [at] trial cannot be used to support [or undermine] the determination of thesuppression court denying [a] motion to suppress [an] oral confession; the propriety ofthe denial must be judged on the evidence before the suppression court" (People vGonzalez, 55 NY2d 720, 721-722 [1981], rearg denied 55 NY2d 1038[1982], cert denied 456 US 1010 [1982]; see People v Carmona, 82NY2d 603, 610 n 2 [1993]).
Defendant made only a general motion for a trial order of dismissal at the close of thePeople's case, and thus failed to preserve for our review his contention that the evidenceis legally insufficient to support the burglary conviction (see People v Gray, 86NY2d 10, 19 [1995]; People vPollard, 70 AD3d 1403, 1404-1405 [2010], lv denied 14 NY3d 891[2010]). In any event, that contention is without merit. The victim testified in detailconcerning that crime, and other testimony, including that of defendant, corroborated hertestimony, thereby satisfying "the proof and burden requirements for every element of thecrime charged" (People v Bleakley, 69 NY2d [*2]490, 495 [1987]). Furthermore, viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict withrespect to all counts is against the weight of the evidence (see generally Bleakley,69 NY2d at 495). Even assuming, arguendo, that a different result would not have beenunreasonable, we conclude that the jury did not fail to give the evidence the weight itshould be accorded, and there is no basis upon which to disturb the jury's credibilitydeterminations (see generally id.).
We reject defendant's further contention that he was denied effective assistance ofcounsel. "The constitutional requirement of effective assistance of counsel will besatisfied [where, as here,] 'the evidence, the law, and the circumstances of [the] particularcase, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation' " (People v Flores, 84 NY2d 184,187 [1994]). "[I]t is well settled that disagreement over trial strategy is not a basis for adetermination of ineffective assistance of counsel" (People v Dombrowski, 94 AD3d 1416, 1417 [2012], lvdenied 19 NY3d 959 [2012]; see People v Henry, 74 AD3d 1860, 1862 [2010], lvdenied 15 NY3d 852 [2010]; see generally People v Benevento, 91 NY2d708, 712-714 [1998]). Here, "[t]he alleged instances of ineffective assistance concerningdefense counsel's failure to make various objections [or certain motions or requests] 'arebased largely on [defendant's] hindsight disagreements with defense counsel's trialstrategies, and defendant failed to meet his burden of establishing the absence of anylegitimate explanations for those strategies' " (People v Douglas, 60 AD3d 1377, 1377 [2009], lvdenied 12 NY3d 914 [2009]; see People v Stepney, 93 AD3d 1297, 1298 [2012], lvdenied 19 NY3d 968 [2012]).
Defendant failed to preserve for our review his contention in his main and pro sesupplemental briefs that he was deprived of a fair trial by prosecutorial misconductduring opening and closing statements because he failed to object to any of the allegedimproprieties (see People vRumph, 93 AD3d 1346, 1347 [2012], lv denied 19 NY3d 967 [2012];see also People v Balls, 69 NY2d 641, 642 [1986]). In any event, assuming,arguendo, that the prosecutor's comments were improper, we conclude that they "did notcause such substantial prejudice to the defendant that he has been denied due process oflaw" (People v Stabell, 270 AD2d 894, 894 [2000], lv denied 95 NY2d804 [2000] [internal quotation marks omitted]; see People v Agostini, 84 AD3d 1716, 1716 [2011], lvdenied 17 NY3d 857 [2011]).
Defendant failed to preserve for our review his further contention that he wasdeprived of a fair trial by the introduction of certain evidence. Specifically, the recordestablishes that defendant moved to preclude parts of a recording that the police made ofhis statements on the ground that they contained evidence of uncharged crimes and,although the court denied the motion, the court gave prompt curative instructions to thejury at trial when the recording was played. Defendant did not object to the instructionsthat were given, nor did he object further or seek a mistrial, and he thus failed to preservefor our review his contention that he was deprived of a fair trial by the introduction of theevidence. "Under these circumstances, the curative instructions must be deemed to havecorrected the error to the defendant's satisfaction" (People v Heide, 84 NY2d943, 944 [1994]; see People vAdams, 90 AD3d 1508, 1509 [2011], lv denied 18 NY3d 954 [2012]).We decline to exercise our power to review defendant's contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
We reject defendant's contention that the court erred in imposing consecutivesentences on the counts of the indictment charging him with sexual abuse and criminalsexual act. "[I]t is well settled that consecutive sentences may be imposed where[, ashere,] acts of deviate sexual intercourse occur within a continuous sexual incident[inasmuch as] the material elements are distinct and require different sexual acts" (People v Lanfair, 18 AD3d1032, 1033-1034 [2005], lv denied 5 NY3d 790 [2005]; see People vLaureano, 87 NY2d 640, 643 [1996]; People v Ramirez, 44 AD3d [*3]442, 445 [2007], lv denied 9 NY3d 1008 [2007]).
Defendant failed to preserve for our review his contention in his pro se supplementalbrief that certain counts of the indictment are facially duplicitous (see People v Becoats, 71AD3d 1578, 1579 [2010], affd 17 NY3d 643 [2011], cert denied566 US —, 132 S Ct 1970 [2012]). In any event, that contention is withoutmerit inasmuch as "[e]ach count of [the] indictment . . . charge[s] oneoffense only" (CPL 200.30 [1]). Furthermore, although defendant's additional contentionthat the indictment was rendered duplicitous by the trial testimony need not be preservedfor our review (see People vFiler, 97 AD3d 1095, 1096 [2012], lv denied 19 NY3d 1025 [2012]; People v Boykins, 85 AD3d1554, 1555 [2011], lv denied 17 NY3d 814 [2011]), that contention is alsowithout merit. The victim's testimony and the court's charge establish that differentconduct is alleged in each of the various counts (see People v Alonzo, 16 NY3d 267, 269 [2011]), and thatthe incident was not a single uninterrupted crime (cf. People v Snyder, 100 AD3d 1367, 1367 [2012]).Defendant's further contention in his pro se supplemental brief concerning thesufficiency of the evidence before the grand jury is not properly before us. It "is wellestablished that '[t]he validity of an order denying any motion [to dismiss an indictmentfor legal insufficiency of the grand jury evidence] is not reviewable upon an appeal froman ensuing judgment of conviction based upon legally sufficient trial evidence' " (People v Afrika, 79 AD3d1678, 1679 [2010], lv denied 17 NY3d 791 [2011], quoting CPL 210.30 [6];see People v Smith, 4NY3d 806, 808 [2005]). Here, we rejected defendant's challenge to the legalsufficiency of the evidence with respect to the burglary conviction, and defendant has notchallenged the legal sufficiency of the evidence with respect to the remaining convictions(see Smith, 4 NY3d at 808).
The sentence is not unduly harsh or severe. We have considered defendant'sremaining contentions in his main and pro se supplemental briefs, and conclude that nonewarrants reversal or modification. Present—Scudder, P.J., Smith, Centra, Carniand Sconiers, JJ.