| People v Aviles |
| 2014 NY Slip Op 05442 [119 AD3d 871] |
| July 23, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Michael Aviles, Appellant. |
Michael G. Paul, New City, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Nelson, J.), rendered April 24, 2012, convicting him of manslaughter in the seconddegree and criminally negligent homicide, after a nonjury trial, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the CountyCourt erroneously denied the severance motion of his codefendant, since the defendantaffirmatively withdrew his own application for a severance and did not otherwise join inthe codefendant's motion (see People v McGee, 68 NY2d 328, 333-334 [1986];People v Islam, 22 AD3d599, 600 [2005]; People vAhmr, 22 AD3d 593, 594 [2005]; see also People v Mack, 89 AD3d 864, 865 [2011]; People v Turnbull, 52 AD3d747, 747 [2008]). The defendant's decision to withdraw his severance motionreflected "a deliberate strategic choice," and, under the circumstances, the defendantshould not be heard to complain simply because his chosen strategy proved unsuccessful(People v Barbaran, 118 AD2d 578, 580 [1986]; see People v Cruz, 144AD2d 686, 687 [1988]; People v Hernandez, 33 AD2d 747, 747 [1969],affd 28 NY2d 522 [1971]).
Contrary to the defendant's contention, evidence of the child victim's prior injurieswas properly admitted to show that the injuries that caused her death were not accidental(see People v Henson, 33 NY2d 63, 71-73 [1973]; see People v Allah, 13 AD3d639 [2004]; People v Sims, 110 AD2d 214, 221 [1985]). The introduction ofsuch evidence is particularly warranted where, as here, "the crime charged has occurredin the privacy of the home and the facts are not easily unraveled" (People vHenson, 33 NY2d at 72).
Contrary to the defendant's contention, reversal is not warranted due to the latedisclosure of certain Rosario material (see People v Rosario, 9 NY2d 286[1961]), as the defendant failed to show that he suffered substantial prejudice from anydelay in disclosure (see People vJingzhi Li, 104 AD3d 704, 705 [2013]; People v Uka, 92 AD3d 907, 907-908 [2012]; People v Chia Yen Yun, 35AD3d 494, 495 [2006]). To the extent that the defendant contends that the People'sfailure to disclose certain mental health records constituted a Rosario violation,this contention is without merit. There was no evidence in the record that this materialexisted (see People vTieman, 112 AD3d 975, 976 [2013]).
[*2] The prosecutor's reference during summation to thedefendant's statement to the codefendant was improper, as the prosecutor's reference tothe statement was precluded by an earlier court ruling. However, the prosecutor's singleimproper comment was an isolated instance and not so egregious as to deprive thedefendant of a fair trial, particularly, where, as here, the trial court, as the factfinder, ispresumed to have considered only competent evidence in reaching its verdict (see People v Ford, 90 AD3d1299, 1302 [2011]; Peoplev Weinberg, 75 AD3d 612, 614 [2010]; People v Pruchnicki, 74 AD3d 1820, 1821-1822 [2010];People v Concepcion, 266 AD2d 227 [1999]).
The defendant's remaining contentions, that certain statements he made to lawenforcement officials should have been suppressed because he was intoxicated,exhausted, and experiencing grief, and that the County Court improperly consideredcertain material contained in a presentence investigation report at the sentencingproceeding, are unpreserved for appellate review (see CPL 470.05 [2]), and wedecline to reach them in the exercise of our interest of justice jurisdiction.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Balkin, Chambers and Miller, JJ., concur.