| People v Harris |
| 2015 NY Slip Op 05208 [129 AD3d 990] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Justin Harris, Appellant. |
Mark Diamond, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andVictor Barall of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Tomei, J.), rendered July 7, 2011, convicting him of burglary in the first degree, robberyin the first degree (six counts), sexual abuse in the first degree (two counts), assault in thesecond degree (three counts), unlawful imprisonment in the first degree (five counts),criminal possession of a weapon in the third degree, criminal possession of a weapon inthe fourth degree (three counts), and endangering the welfare of a child (two counts),upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the prosecution failed to adduce legally sufficientevidence of his identity as one of the perpetrators of the crime is unpreserved forappellate review (see CPL 470.05 [2]; People v Woods, 123 AD3d 1154 [2014]; People v Warren, 50 AD3d706, 707 [2008]; People v Betts, 292 AD2d 539, 540 [2002]) since he madeonly general motions to dismiss at the close of the People's case and at the close of allevidence. In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), the identificationevidence was legally sufficient. Moreover, upon reviewing the record, we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see CPL470.15 [5]; People vRomero, 7 NY3d 633 [2006]).
The defendant's contention that the robbery, sexual assault, and weapons counts inthe indictment are multiplicitous is unpreserved for appellate review (see CPL210.20, 210.25; People vAllen, 24 NY3d 441, 444 [2014]; People v Cruz, 96 NY2d 857, 858[2001]; People v Salton,120 AD3d 838 [2014]; People v Nash, 77 AD3d 687, 688 [2010]). In any event,the counts relating to the sexual assault charges and the counts relating to the weaponscharges are not multiplicitous (see Penal Law § 20.00; People v Ross, 118 AD3d1413 [2014]). Further, the issue as to the robbery counts has been rendered academic(see People v Stabb, 9AD3d 738, 739 [2004]; People v Smith, 113 AD2d 905, 907-908 [1985])since the jury acquitted the defendant of count 33 relating to the robbery charge.
The defendant's contention that his Sixth Amendment right to confrontation (seeDavis v Washington, 547 US 813 [2006]; Crawford v Washington, 541 US36 [2004]) was violated by the [*2]admission of thevictims' medical records and DNA evidence is unpreserved for appellate review (seeCPL 470.05 [2]; People vJacob, 117 AD3d 1079, 1080 [2014]; People v Blackman, 90 AD3d 1304, 1309 [2011]; People v Sprosta, 49 AD3d784, 785 [2008]). In any event, the contention is without merit, as neither thehospital records (see People vDuhs, 16 NY3d 405, 409-410 [2011]; People v Freycinet, 11 NY3d 38, 42 [2008]; People v Pham, 118 AD3d1159, 1162 [2014]) nor the laboratory reports generated by the Office of the ChiefMedical Examiner of the City of New York (see People v Fucito, 108 AD3d 777, 777 [2013]; People v Pitre, 108 AD3d643, 644 [2013]) were testimonial in nature, and the forensic biologist whoconducted the actual analysis and interpretation of the data contained in the lab reportswas subject to cross-examination (see People v Brown, 13 NY3d 332, 341 [2009]; People v Dail, 69 AD3d873, 874 [2010]).
The defendant's contention that the prosecutor committed misconduct on summationis unpreserved for appellate review, as he failed to object to the challenged comments(see CPL 470.05 [2]). In any event, the remarks were fair response to the defensesummation (see People vLugg, 124 AD3d 679 [2015]), and the claimed inflammatory comments werenot so flagrant or pervasive as to deprive the defendant of a fair trial (see People v Joubert, 125AD3d 686 [2015]). Under these circumstances, defense counsel's failure to object tothe challenged remarks did not constitute ineffective assistance of counsel (see People v Callender, 123AD3d 840 [2014]; People vErvin, 118 AD3d 910, 912 [2014]).
The trial court's Sandoval ruling (see People v Sandoval, 34 NY2d371 [1974]) was not an improvident exercise of discretion. The court balanced therelevant factors and formulated an appropriate compromise (see People v English, 119AD3d 706, 707 [2014]), and properly determined that the adjudicated infractionswere probative of the defendant's veracity because they indicated his willingness to puthis own interests above society's (see People v Quezada, 116 AD3d 796 [2014]).
Contrary to the defendant's contention, the imposition of concurrent sentences wasnot mandated, as the acts constituting the relevant crimes were separate and distinct(see Penal Law § 70.25 [2]; People v Frazier, 16 NY3d 36, 40 [2010]; People v Starr, 114 AD3d813, 814 [2014]; People vSamms, 83 AD3d 1099 [2011]). Also, "[w]here, as here, separate acts arecommitted against different victims during the same criminal transaction, the court mayproperly impose consecutive sentences in the exercise of its discretion" (People v Hamilton, 96 AD3d1518, 1520 [2012] [internal quotation marks omitted]; see People vMullgrav, 137 AD2d 839, 840 [1988]).
The defendant's remaining contentions are without merit. Rivera, J.P., Austin, Sgroiand Barros, JJ., concur.