| People v Renaud |
| 2016 NY Slip Op 01513 [137 AD3d 818] |
| March 2, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Stephen Renaud, Appellant. |
Lynn W. L. Fahey, New York, NY (Denise A. Corsí of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and KeithDolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered October 25, 2013, convicting him of rape in the second degree andcourse of sexual conduct against a child in the first degree (two counts), upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Between January 2008 and May 2008, the defendant allegedly engaged in sexualintercourse with his 13-year-old stepdaughter, who became pregnant and gave birth to achild. For those alleged acts, the defendant was charged under indictment No. 7502/10with rape in the second degree, and other related crimes. After the defendant's arrest, hisstepniece reported that he had sexually abused her as well, beginning in September orOctober 2005, when she was 8 years old, until March 2007, and again during the periodof October 2007 to July 2008. Based upon the stepniece's allegations, the defendant wascharged under indictment No. 9219/12 with course of sexual conduct against a child inthe first degree and related crimes. In an order dated April 3, 2013, the Supreme Courtgranted the People's motion to consolidate the two indictments, and the two indictmentswere consolidated under indictment No. 7502/10. After a jury trial, the defendant wasconvicted of rape in the second degree and two counts of course of sexual conductagainst a child in the first degree.
The defendant failed to preserve for appellate review his contention that the evidencewas legally insufficient to support his convictions (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The trial court did not improvidently exercise its discretion in consolidating the two[*2]indictments for a single trial. Both indictments chargeoffenses under Penal Law article 130 relating to sex offenses and, therefore, couldproperly be consolidated under CPL 200.20 (2) (c) (see People v McCrae, 69 AD3d 759, 760 [2010];People v Burke, 287 AD2d 512, 514 [2001]). The defendant's claim that the trialcourt failed to instruct the jury with respect to its duty to consider the crimes separately isunpreserved for appellate review (see CPL 470.05 [2]; People v Beltran, 110 AD3d153, 163 [2013]) and, in any event, without merit (see People v Harris, 29 AD3d387, 388 [2006]).
The defendant's contention that certain counts in the consolidated indictment weremultiplicitous is unpreserved for appellate review (see People v Cruz, 96 NY2d857 [2001]) and, in any event, without merit (see People v Noble, 131 AD3d 550 [2015]; People v Salton, 120 AD3d838 [2014]; People v Saunders, 290 AD2d 461 [2002]; cf. People vBeltran, 110 AD3d at 163).
The defendant's contention that he was denied due process when the prosecutorpresented inadmissible and excessive outcry testimony from multiple witnesses (seegenerally People v McDaniel, 81 NY2d 10, 16-18 [1993]) is unpreserved forappellate review (see CPL 470.05 [2]; People v Honghirun, 133 AD3d 882 [2015]; People v Jean, 117 AD3d875, 878 [2014]). Moreover, the contention was waived, insofar as the defenseelicited the challenged testimony from certain witnesses on cross-examination (seePeople v Jean, 117 AD3d at 878; People v Stalter, 77 AD3d 776, 776-777 [2010]; People v Grant, 54 AD3d967, 967 [2008]; People vBryan, 50 AD3d 1049, 1050-1051 [2008]).
The defendant's contention that the court erred by permitting the People to introduceinto evidence a photograph depicting one of the complainants is unpreserved forappellate review (see CPL 470.05 [2]; People v Stevenson, 129 AD3d 998, 999 [2015]) andwaived (see People vCleophus, 81 AD3d 844, 846 [2011]).
The defendant's arguments regarding the prosecutor's allegedly improper commentsduring summation are unpreserved for appellate review. In any event, the remarks werewithin the broad bounds of permissible rhetorical comment, fair response to thedefendant's summation, or fair comment on the evidence and the reasonable inferences tobe drawn therefrom (see People v Halm, 81 NY2d 819, 821 [1993]; People vGalloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105,109-110 [1976]).
The defendant's claim that he was deprived of the constitutional right to the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, onmatter outside the record, namely, defense counsel's failure to secure and consult anexpert witness. This constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Rosado, 134 AD3d 1133 [2015]). It is not evident from the matterappearing on the record that the defendant was not provided with meaningfulrepresentation (see People vAddison, 107 AD3d 730, 732 [2013]; cf. People v Crump, 53 NY2d824, 825 [1981]). Since the defendant's claim of ineffective assistance of counsel cannotbe resolved without reference to matter outside the record, a CPL 440.10 proceeding isthe appropriate forum for reviewing the claim in its entirety (see People vAddison, 107 AD3d at 732; People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109).
The defendant's contention that the sentencing court punished him for exercising hisright to a jury trial rather than accepting a plea offer is unpreserved for appellate review(see CPL 470.05 [2]; People v Hurley, 75 NY2d 887, 888 [1990]; People v Jimenez, 84 AD3d1268, 1269 [2011]). In any event, the fact that the sentence imposed after trial wasgreater than the sentence offered during plea negotiations is not, standing alone, anindication that the defendant was punished for exercising his right to trial (see People v Givhan, 78 AD3d730, 731-732 [2010]; People v Johnson, 76 AD3d 1103 [2010]; People v Toussaint, 74 AD3d846 [2010]).
The defendant's remaining contention is without merit. Chambers, J.P., Austin,Miller and LaSalle, JJ., concur.