| People v Jefferson |
| 2015 NY Slip Op 01305 [125 AD3d 1463] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDonnell Jefferson, Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Donnell Jefferson, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered July 21, 2010. The judgment convicted defendant, upon a jury verdict, ofpredatory sexual assault (two counts), kidnapping in the second degree, and robbery inthe first 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 predatory sexual assault (Penal Law § 130.95 [1][b]; [3]), and one count each of kidnapping in the second degree (§ 135.20)and robbery in the first degree (§ 160.15 [3]). Viewing the evidence in lightof the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence againstdefendant is based largely on the testimony of prosecution witnesses, and we afforddeference to the jury's ability "to view the witnesses, hear the testimony and observedemeanor" (id.; seePeople v Gay, 105 AD3d 1427, 1428 [2013]).
We further reject defendant's contention that County Court erred in permitting awitness to testify that defendant had called her on the night of the incident and indicatedthat he might be "going to jail." That testimony was admissible because defendant'sstatement was relevant with respect to his consciousness of guilt, and the probative valueof the testimony outweighs any potential prejudice (see People v Bennett, 79NY2d 464, 469-470 [1992]; People v Case, 113 AD3d 872, 873 [2014], lvdenied 23 NY3d 961 [2014]). We likewise reject defendant's contention that thecourt erred in admitting in evidence both the phone cord found in the victim's vehicle andthe results of the DNA testing from the cord, based on a gap in the chain of custody."The People provided sufficient assurances of the identity and unchanged condition ofthe [cord] . . . , and any alleged gaps in the chain of custody went to theweight of the evidence and not its admissibility" (People v Johnson, 121 AD3d 1578, 1578 [2014]; seePeople v Julian, 41 NY2d 340, 342-343 [1977]; People v Howard, 2 AD3d 1323, 1323-1324 [2003], lvdenied 2 NY3d 800 [2004]). In any event, any error in admitting the cord and theDNA results in evidence is harmless (see generally People v Crimmins, 36 NY2d230, 241-242 [1975]).
Defendant failed to preserve for our review his contention that the indictment ismultiplicitous with respect to the two counts of predatory sexual assault (see People v Sponburgh, 61AD3d 1415, 1416 [2009], lv denied 12 NY3d 929 [2009]; People vBrandel, 306 AD2d 860, 860 [2003]) and, in any event, that contention is withoutmerit. Although the two counts concern the same victim, they require, respectively, proofthat defendant used or threatened the immediate use of a dangerous instrument and proofthat defendant committed a prior felony under Penal Law article 130. "An indictment isnot multiplicitous if each count requires proof of an [*2]additional fact that the other does not" (People vKindlon, 217 AD2d 793, 795 [1995], lv denied 86 NY2d 844 [1995]). Wefurther conclude that the sentence is not unduly harsh or severe.
Defendant contends in his main and pro se supplemental briefs that he was deprivedof effective assistance of counsel because, inter alia, defense counsel waived certainpretrial hearings, waived an opening statement at trial, and did not cross-examine all ofthe prosecution witnesses. To the extent that defendant's contention "involve[s] mattersoutside the record on appeal, . . . the proper procedural vehicle for raising[that] contention[ ] is a motion pursuant to CPL 440.10" (People v Archie, 78 AD3d1560, 1562 [2010], lv denied 16 NY3d 856 [2011]). To the extent thatdefendant's contention is properly before us, we conclude that defendant receivedmeaningful assistance of counsel (see generally People v Baldi, 54 NY2d 137,147 [1981]).
Defendant further contends in his pro se supplemental brief that he was deprived of afair trial based on alleged Brady violations. Those parts of defendant's contentionconcerning the prosecutor's alleged failure to disclose his ex-girlfriend's priorexculpatory statements made on his behalf and the victim's ex-boyfriend's prior writtenstatement involve matters outside the record, and thus must be raised by a motionpursuant to CPL article 440 (seePeople v DeJesus, 110 AD3d 1480, 1482 [2013], lv denied 22 NY3d1155 [2014]). To the extent that defendant's contention is reviewable, we conclude that itlacks merit. Present—Scudder, P.J., Centra, Lindley, Sconiers and DeJoseph,JJ.