| People v Smith |
| 2013 NY Slip Op 06164 [109 AD3d 1150] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vBartholomew Smith, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered December 11, 2009. The judgment convicted defendant, upon a juryverdict, of murder in the first degree and rape 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 murder in the first degree (Penal Law § 125.27 [1] [a] [vii]; [b]) andrape in the first degree (§ 130.35 [1]). Contrary to defendant's contention, SupremeCourt did not err in denying his motion seeking severance of those counts of theindictment relating to the rape of the first victim from those counts relating to the murderof a second victim six months later. "To effect a severance[, defendant] must eitherdemonstrate that the counts were not joinable under the statutory criteria . . .or seek a discretionary severance" (People v Lane, 56 NY2d 1, 7 [1982]).Offenses are joinable if, inter alia, proof of either offense would be material andadmissible as evidence-in-chief at the trial of the other offense (see CPL 200.20[2] [b]). Defendant was indicted for murder in the first degree under the theory that hekilled the second victim in the course of committing the crime of criminal sexual act inthe first degree, i.e., forcible anal sexual conduct (see Penal Law §§125.27 [1] [a] [vii]; 130.50 [1]). We conclude that evidence with respect to the rapecount was material and admissible to establish defendant's intent to have forcible analsexual conduct with the second victim (see People v Wise, 46 AD3d 1397, 1398-1399 [2007],lv denied 10 NY3d 872 [2008]; People v Matuszak, 32 AD3d 1347, 1348 [2006]; People v White, 27 AD3d387, 388 [2006], lv denied 6 NY3d 899 [2006]; see generally People v Kelley,46 AD3d 1329, 1331-1332 [2007], lv denied 10 NY3d 813 [2008]). Eachvictim lived in the same apartment building that defendant lived in at the time of therespective crimes, and defendant knew both victims. DNA testing showed thatdefendant's sperm was found in the second victim's anal cavity, but defendant told thepolice that he and the second victim had consensual sex. Defendant had also told thepolice that he and the first victim had consensual sex. Further, the first victim tolddefendant's girlfriend immediately following the rape that defendant had threatened tostrangle her with a string or thin rope, and the cause of death of the second victim wasstrangulation with a shoe string. Thus, inasmuch as the offenses were properly joinableunder CPL 200.20 (2) (b), the court lacked discretion to sever them (see People vBongarzone, 69 NY2d 892, 895 [1987]; People v Webb, 60 AD3d [*2]1291, 1293 [2009], lv denied 12 NY3d 930[2009]).
We reject defendant's contention that the court erred in admitting in evidencestatements of the first victim after the rape as excited utterances. The court concludedthat "[t]he statements were made while the victim was under the stress of the event"(People v Vigliotti, 270 AD2d 904, 904 [2000], lv denied 95 NY2d 839[2000], reconsideration denied 95 NY2d 970 [2000]; see People vPowell, 288 AD2d 5, 5-6 [2001], lv denied 97 NY2d 732 [2002]), and weperceive no basis to disturb that determination (see People v Davis, 87 AD3d 1332, 1335 [2011], lvdenied 18 NY3d 858 [2011], reconsideration denied 18 NY3d 956 [2012]).Defendant further contends that he was denied a fair trial by prosecutorial misconductduring the cross-examination of defendant and during summation. Most of the instancesof alleged misconduct are not preserved for our review (see People v Haynes, 104AD3d 1142, 1144 [2013]) and, in any event, we conclude that "[a]ny improprietieswere not so pervasive or egregious as to deprive defendant of a fair trial" (People v Cox, 21 AD3d1361, 1364 [2005], lv denied 6 NY3d 753 [2005] [internal quotation marksomitted]). We further conclude that defendant was not denied effective assistance ofcounsel by defense counsel's failure to object to certain conduct of the prosecutor (see People v Gaston, 100AD3d 1463, 1465 [2012]).
Defendant contends that there was legally insufficient evidence that he committedcriminal sexual act in the first degree, an essential element of murder in the first degreeas charged to the jury (see Penal Law § 125.27 [1] [a] [vii]). By notrenewing his motion for a trial order of dismissal after presenting evidence, defendantfailed to preserve that contention for our review (see People v Hines, 97 NY2d56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, that contentionis without merit inasmuch as the evidence, viewed in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), establishes that thesecond victim was found naked; defendant's semen was in her anal cavity; she had beenstrangled from behind; she had blunt trauma to the face and defensive wounds on herhand; and she had DNA consistent with defendant under her fingernails. We thereforeconclude that the evidence was legally sufficient to establish that defendant committedanal sexual conduct by forcible compulsion (see § 130.50 [1]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Additionally, viewing theevidence in light of the elements of murder in the first degree and rape in the first degreeas charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict isnot against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra,Lindley and Whalen, JJ.