| People v Miller |
| 2014 NY Slip Op 02163 [115 AD3d 1302] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vClarence Miller, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered November 30, 2004. The judgment convicted defendant, after a jury trial, ofkidnapping in the second degree, criminal use of a firearm in the first degree, criminalpossession of a weapon in the second degree, assault in the second degree, assault in thethird degree and reckless endangerment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by directing that the determinate sentence imposed on count three of theindictment shall run concurrently with the determinate sentences imposed on counts oneand two and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trialof, inter alia, kidnapping in the second degree (Penal Law § 135.20), criminal useof a firearm in the first degree ([CUF] § 265.09 [1] [a]), criminal possession of aweapon in the second degree ([CPW] § 265.03 [former (2)]), and assault in thesecond degree (§ 120.05 [2]). Although defendant contends that he was denied afair trial based on prosecutorial misconduct during opening and closing statements, hedid not raise any objection to the allegedly improper comments at trial and thus failed topreserve his contention for our review (see People v Lane, 106 AD3d 1478, 1480 [2013], lvdenied 21 NY3d 1043 [2013]). "In any event, '[w]e do not believe that thecumulative effect of the asserted instances of misconduct on the part of the prosecutorprejudiced the verdict and deprived defendant of a fair trial' and thus reversal is notrequired" (People v Gates, 6AD3d 1062, 1063 [2004], lv denied 3 NY3d 659 [2004]; see People v Russell, 50 AD3d1569, 1570 [2008], lv denied 10 NY3d 939 [2008]; cf. People vCalabria, 94 NY2d 519, 522-523 [2000]). Defendant further contends that he wasdenied effective assistance of counsel based on defense counsel's failure to object to theallegedly improper comments of the prosecutor. We reject that contention. Defendantfailed " 'to demonstrate the absence of strategic or other legitimate explanations' forcounsel's alleged shortcomings" (People v Benevento, 91 NY2d 708, 712[1998]), and the record establishes that defense counsel provided meaningfulrepresentation to defendant (see generally People v Baldi, 54 NY2d 137, 147[1981]).
Defendant further contends that County Court erred in admitting in evidence asexcited utterances statements made by the victim to an emergency medical technician(EMT). We reject [*2]that contention. It is well settledthat "[t]he admissibility of an excited utterance is entrusted in the first instance to the trialcourt. In making that determination, the court must ascertain whether, at the time theutterance was made, the declarant was under the stress of excitement caused by anexternal event sufficient to still his [or her] reflective faculties, thereby preventingopportunity for deliberation which might lead the declarant to be untruthful. The courtmust assess not only the nature of the startling event and the amount of time which haselapsed between the occurrence and the statement, but also the activities of the declarantin the interim to ascertain if there was significant opportunity to deviate from the truth.Above all, the decisive factor is whether the surrounding circumstances reasonablyjustify the conclusion that the remarks were not made under the impetus of studiedreflection" (People v Edwards, 47 NY2d 493, 497 [1979]; see People vCarroll, 95 NY2d 375, 385 [2000]). Notably, "the time for reflection is not measuredin minutes or seconds, but rather is measured by facts" (People v Dalton, 88NY2d 561, 579 [1996] [internal quotation marks omitted]).
There is no dispute that there was a period of time between the victim's treatment bythe EMT and her statements. During that period of time, however, the victim's child andniece were still in the apartment with defendant, the man who had kidnapped the victimand beaten her with a loaded gun. We thus conclude that " 'at the time the utterance[swere] made [the victim] was in fact under the stress of excitement caused by an externalevent sufficient to still . . . her reflective faculties' . . . ,including both the physical and emotional stress of the [kidnapping and] beating earlieradministered by defendant[,] . . . the stress of being confined in [anapartment and car] with defendant following the attack," and the stress of having twosmall children still in harm's way (People v Bryant, 27 AD3d 1124, 1126 [2006], lvdenied 7 NY3d 753 [2006], quoting People v Johnson, 1 NY3d 302, 306 [2003]).
"By failing to raise a specific objection, defendant has failed to preserve for ourreview his contention that [the] testimony of [the EMT] constituted bolstering" (People v Butler, 2 AD3d1457, 1458 [2003], lv denied 3 NY3d 637 [2004]; see People vWest, 56 NY2d 662, 663 [1982]; People v Comerford, 70 AD3d 1305, 1306 [2010]). In anyevent, because the statements made by the victim were properly determined to be excitedutterances, they did not constitute improper bolstering (see People v Stevens, 57AD3d 1515, 1516 [2008], lv denied 12 NY3d 822 [2009]; People vSimms, 244 AD2d 920, 920 [1997], lv denied 91 NY2d 897 [1998]).
We reject defendant's further contention that the evidence is legally insufficient tosupport the conviction of kidnapping, CUF, CPW and assault in the second degree."Although there were minor inconsistencies between the victim's trial testimony and hergrand jury testimony, those inconsistencies did not render her testimony incredible as amatter of law" (People vEnnis, 107 AD3d 1617, 1618 [2013], lv denied 22 NY3d 1040 [2013]),i.e., "it was not impossible of belief because it [was] manifestly untrue, physicallyimpossible, contrary to experience, or self-contradictory" (People v Bieganowski, 104AD3d 1276, 1276 [2013], lv denied 21 NY3d 1002 [2013] [internalquotation marks omitted]; seePeople v Gaston, 100 AD3d 1463, 1464 [2012]).
Viewing the evidence in light of the elements of the crimes of kidnapping, CUF,CPW and assault in the second degree as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987])."[N]othing in the record suggests that the victim was 'so unworthy of belief as to beincredible as a matter of law' or otherwise tends to establish defendant's innocence ofthose crimes . . . , and thus it cannot be said that the jury failed to give theevidence the weight it should be accorded" (People v Woods, 26 AD3d 818, 819 [2006], lvdenied 7 NY3d 765 [2006]; see generally Bleakley, 69 NY2d at 495).
Defendant's final challenges concern the sentence. We agree with defendant that the[*3]court erred in ordering the sentences imposed oncounts one and two, the kidnapping and CUF counts, to run consecutively to the sentenceimposed on count three, the CPW count. Defendant's possession of the firearm was not aseparate and distinct act from either the kidnapping or the CUF. With respect to thekidnapping count, the threatened use of force element of the kidnapping charge wasaccomplished because of defendant's possession of the gun with the intent to use it; therewould have been no restraint or abduction without that conduct (see People vRivera, 277 AD2d 470, 472 [2000], lv denied 96 NY2d 833 [2001];People v Phillips, 182 AD2d 648, 649 [1992], lv denied 79 NY2d 1052[1992], 81 NY2d 765 [1992]). With respect to the CUF count, one of the elements of thatcrime is the possession of a loaded deadly weapon, i.e., the very conduct encompassed bythe CPW count (see People v Laureano, 87 NY2d 640, 644-645 [1996];People v Jenkins, 232 AD2d 504, 505 [1996], lv denied 89 NY2d 924[1996], lv denied upon reconsideration 90 NY2d 859 [1996]). We thus concludethat, pursuant to Penal Law § 70.25 (2), the court should have ordered thesentences on those three counts to run concurrently, and we therefore modify thejudgment accordingly.
With respect to the remaining counts, we conclude that consecutive sentencing waspermissible. Defendant's possession of the gun with the intent to use it unlawfully wascompleted before he used the gun to commit the remaining crimes, and it continued evenafter those crimes were completed (see People v Okafore, 72 NY2d 81, 87[1988]). Thus, defendant's possession of the weapon was a separate and distinct act forwhich consecutive sentences could be imposed (see People v Salcedo, 92 NY2d1019, 1021-1022 [1998]; People v Hurd, 246 AD2d 483, 484 [1998], lvdenied 91 NY2d 1008 [1998]; People v Dugger, 236 AD2d 483, 484 [1997],lv denied 89 NY2d 1034 [1997]).
Defendant failed to preserve for our review his contention that he was penalized forasserting his right to a trial (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Motzer, 96 AD3d1635, 1636 [2012], lv denied 19 NY3d 1104 [2012]; People v Singleton, 67 AD3d1455, 1456 [2009], lv denied 14 NY3d 773 [2010]). In any event, thatcontention lacks merit. " '[T]he mere fact that a sentence imposed after trial is greaterthan that offered in connection with plea negotiations is not proof that defendant waspunished for asserting his right to trial . . . , and there is no indication in therecord before us that the sentencing court acted in a vindictive manner based ondefendant's exercise of the right to a trial' " (People v Stubinger, 87 AD3d 1316, 1317 [2011], lvdenied 18 NY3d 862 [2011]; see People v Trinidad, 107 AD3d 1432, 1432-1433 [2013],lv denied 21 NY3d 1046 [2013]).
Finally, we conclude that the sentence, as modified, is not unduly harsh or severe.Present—Scudder, P.J., Centra, Peradotto, Lindley and Whalen, JJ.