| People v Ross |
| 2014 NY Slip Op 04607 [118 AD3d 1413] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDaniel L. Ross, Also Known as John Doe, Appellant. |
Lorenzo Napolitano, Rochester, for defendant-appellant.
Daniel L. Ross, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered August 20, 2009. The judgment convicted defendant, upon a jury verdict, ofrape in the first degree (two counts), criminal sexual act in the first degree (two counts)and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of rape in the first degree (Penal Law § 130.35 [1]),two counts of criminal sexual act in the first degree (§ 130.50 [1]), andassault in the second degree (§ 120.05 [2]). The conviction arises out of theforcible rape of the 48-year-old victim by defendant and the codefendant, whichculminated in the victim being stabbed three times and left for dead.
We reject defendant's contention in his main brief that the conviction is notsupported by legally sufficient evidence inasmuch as his conviction is based solely onDNA evidence obtained from a readily moveable object, i.e., a condom left at the scene(see People v Person, 74AD3d 1239, 1240-1241 [2010], lv denied 17 NY3d 799 [2011]). The DNAsample matching defendant's DNA was collected from that condom, and the victim'sDNA also matched a sample taken from the condom. Moreover, the victim crediblytestified that she was raped by two attackers, one of whom matched defendant'sdescription, and testimony from police officers supported the conclusion that the condomhad been recently left at the scene (see People v Gibson, 74 AD3d 1700, 1703 [2010], affd17 NY3d 757 [2011]; People v Dearmas, 48 AD3d 1226, 1228 [2008], lvdenied 10 NY3d 839 [2008]; see also People v Rush, 242 AD2d 108, 110[1998], lv denied 92 NY2d 860 [1998], reconsideration denied 92 NY2d905 [1998]).
Defendant's further contention in his pro se supplemental brief that the convictionotherwise is not supported by legally sufficient evidence is not preserved for our review(see generally People v Gray, 86 NY2d 10, 19 [1995]), and we decline toexercise our power to address it as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to defendant's contention, the indictment is not multiplicitous. He wascharged in count one with raping the victim as a principal and, in count two, for acting asan accomplice in the codefendant's rape of the victim. Those are distinct criminal acts,and the People therefore properly charged them as separate counts (see generally People v Smith,27 AD3d 242, 243-244 [2006], lv denied 7 NY3d 763 [2006]; People vJohnson, 289 AD2d 1008, 1009 [2001], lv denied 97 NY2d 756 [2002]).Contrary to defendant's further contention, the indictment is not duplicitous inasmuch asthere was no evidence adduced at trial that he had committed more than one rape orcriminal sexual act in his capacity as a principal or as an accomplice (see People vKeindl, 68 NY2d 410, 417-418 [1986], rearg denied 69 NY2d 823 [1987];see also CPL 200.30 [1]; People v Alonzo, 16 NY3d 267, 269 [2011]). Furthermore,defendant's contention that he prevented the codefendant from continuing to stab thevictim is unsupported by the trial testimony and, in any event, is irrelevant to the issue ofhis guilt of the crimes charged.
Although defendant was subjected to custodial interrogation when he gave hiswritten statement to the police, it is undisputed that he had previously waived hisMiranda rights, and we therefore conclude that his statement was voluntary (see generally People v Brooks,26 AD3d 739, 740 [2006], lv denied 6 NY3d 846 [2006], reconsiderationdenied 7 NY3d 810 [2006]). We further conclude that defendant's subsequent refusalto sign the written statement did not render invalid the knowing, intelligent and voluntarynature of the statement (see People v Barksdale, 140 AD2d 531, 532 [1988],lv denied 72 NY2d 915 [1988]). That conclusion is supported by thetestimony of one of the officers at the suppression hearing that defendant had confirmedthe accuracy of the statement after the officer had read it back to him. Moreover, thestatement was of an exculpatory nature, and thus there is no basis for inferring thatdefendant did not want his denials to the allegations against him to be documented by thepolice.
With respect to defendant's contention in both his main and pro se supplementalbriefs that he was deprived of effective assistance of counsel, we note as an initial matterthat we use only the state standard for ineffective assistance of counsel where adefendant contends that he received ineffective assistance of counsel under both the stateand federal standards (seePeople v Stultz, 2 NY3d 277, 282 [2004], rearg denied 3 NY3d 702[2004]; People v Henry, 95 NY2d 563, 565-566 [2000]; cf. People v McDonald, 1NY3d 109, 114-115 [2003]; see generally People v Baldi, 54 NY2d 137, 147[1981]). Applying that standard, we conclude that defendant's contention is withoutmerit. First, with respect to defendant's contention that defense counsel failed to call aDNA expert to refute the People's proof, we conclude that he failed to" 'demonstrate the absence of strategic or other legitimate explanations' forcounsel's alleged shortcomings" (People v Benevento, 91 NY2d 708, 712[1998]). Indeed, the record suggests that an expert was, in fact, consulted, and thatdefense counsel deliberately decided not to call him to testify (see generally People v Sprosta,49 AD3d 784, 785 [2008], lv denied 10 NY3d 871 [2008]).
Second, contrary to defendant's further contention, defense counsel was notineffective in failing to request a missing witness charge, inasmuch as such requestwould have had little or no chance of success (see People v Savinon, 100 NY2d192, 197 [2003]; see generally Stultz, 2 NY3d at 287). Third, defendant'sassertion that defense counsel failed to join in the codefendant's discovery motion andfailed to advise defendant of the ramifications of rejecting the People's plea offer,involve matters outside the record on appeal, and "the proper procedural vehicle forraising those contentions is a motion pursuant to CPL 440.10" (People v Archie, 78 AD3d1560, 1562 [2010], lv denied 16 NY3d 856 [2011]). Defendant's remainingcontentions concerning ineffective assistance of counsel lack merit. The evidence, thelaw, and the circumstances of this particular case, viewed in totality and as of the time ofthe representation, reveal that defense counsel provided meaningful representation(see generally Baldi, 54 NY2d at 147).
Contrary to defendant's contention, the sentence is not unduly harsh and severe.Defendant failed to preserve his further contention that, "in determining the sentence tobe imposed, the court penalized him for exercising his right to a jury trial, inasmuch as[he] failed to raise that contention at sentencing" (People v Stubinger, 87 AD3d 1316, 1317 [2011], lvdenied 18 NY3d 862 [2011]). In any event, the "mere fact that a sentence imposedafter trial is greater than that offered in connection with plea negotiations is not proofthat defendant was punished for asserting his right to trial" (id.). Furthermore, weconclude that the court did not err in sentencing him to a consecutive term ofincarceration for the assault conviction (see People v Smith, 269 AD2d 778, 778[2000], lv denied 95 NY2d 804 [2000]).
Finally, defendant's contention that prosecutorial misconduct on summation deprivedhim of a fair trial is unpreserved for our review (see People v Klavoon, 207AD2d 979, 980 [1994], lv denied 84 NY2d 908 [1994]; see generally People vThompson, 59 AD3d 1115, 1117 [2009], lv denied 12 NY3d 860[2009]). In any event, the court sustained the codefendant's objection to one of thecontested comments and provided a limiting instruction in that regard (see People v Hawkes, 39AD3d 1209, 1210 [2007], lv denied 9 NY3d 845 [2007]), and the otherremark constituted "a fair response to defense counsel's summation and/or a faircomment on the evidence" (People v Ward, 107 AD3d 1605, 1606 [2013], lvdenied 21 NY3d 1078 [2013]; see generally People v Halm, 81 NY2d 819,821 [1993]). Present—Scudder, P.J., Centra, Fahey, Sconiers and Valentino,JJ.