| People v McClean |
| 2016 NY Slip Op 01698 [137 AD3d 940] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kaunda McClean, Appellant. |
Lynn W. L. Fahey, New York, NY (Allegra Glashausser and Alexis Ascher ofcounsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and RheaA. Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered July 27, 2012, convicting him of rape in the first degree, rape inthe third degree, criminal sexual act in the first degree, sexual abuse in the first degree(three counts), criminal sexual act in the third degree, and sexual abuse in the thirddegree (three counts), upon a jury verdict, and sentencing him to (a) concurrentdeterminate terms of imprisonment of 22 years to be followed by a period of 10 years ofpostrelease supervision on the conviction of rape in the first degree, and four years to befollowed by a period of five years of postrelease supervision on the conviction of rape inthe third degree, (b) concurrent determinate terms of imprisonment of 22 years to befollowed by a period of 10 years of postrelease supervision on the conviction of criminalsexual act in the first degree, six years to be followed by a period of five years ofpostrelease supervision on each of the convictions of sexual abuse in the first degree, andfour years to be followed by a period of five years of postrelease supervision on theconviction of criminal sexual act in the third degree, to run consecutively to the sentencesimposed on the convictions of rape in the first degree and rape in the third degree, and (c)concurrent definite terms of imprisonment of three months on each of the convictions ofsexual abuse in the third degree, to run consecutively to the sentences imposed on theconvictions of rape in the first degree and rape in the third degree, and concurrently withthe sentences imposed on the convictions of criminal sexual act in the first degree, sexualabuse in the first degree, and criminal sexual act in the third degree.
Ordered that the judgment is modified, on the law, on the facts, and as a matter ofdiscretion in the interest of justice, (1) by vacating the convictions of sexual abuse in thethird degree, vacating the sentences imposed thereon, and dismissing those counts of theindictment, and (2) by providing that all of the sentences imposed shall run concurrentlywith each other; as so modified, the judgment is affirmed.
The defendant's contention that he received ineffective assistance of counsel iswithout merit. The defendant failed to demonstrate "the absence of strategic or otherlegitimate explanations" for counsel's alleged shortcoming (People v Rivera, 71NY2d 705, 709 [1988]; seePeople v Caban, 5 NY3d 143, 152 [2005]).
The defendant's challenge to certain comments the prosecutor made in summation iswithout merit, as the remarks were responsive to the defense summation, constituted faircomment on the evidence, or were within the broad bounds of rhetorical commentpermissible in closing [*2]arguments (see People v Fletcher, 130AD3d 1063, 1066 [2015]; People v Marks, 128 AD3d 852, 853 [2015]; cf. Peoplev Morgan, 66 NY2d 255, 259 [1985]). To the extent that any prejudicial effect mayhave resulted from some of the challenged remarks, it was ameliorated by the trial court'simmediate admonitions (see People v Tosca, 98 NY2d 660, 661 [2002];People v Marks, 128 AD3d at 853).
The defendant contends that the Supreme Court erred in its handling of acommunication from two of the jurors. Contrary to the defendant's contention, thealleged error was not a mode of proceedings error, so preservation was required (see People v Nealon, 26 NY3d152, 161 [2015]; People vAlcide, 21 NY3d 687, 695 [2013]; People v Braithwaite, 126 AD3d 993, 996 [2015]).Although defense counsel was made aware of the substance of the communication andthe steps taken by the court in response to it, he failed to object (see People v Williams, 21NY3d 932, 934-935 [2013]; People v Ramirez, 15 NY3d 824, 825-826 [2010]).Accordingly, the defendant's contention is unpreserved for appellate review (seeCPL 470.05 [2]), and we decline to review the issue in the exercise of our interest ofjustice jurisdiction (see CPL 470.15 [6] [a]).
The defendant's contention that two of the three counts of sexual abuse in the firstdegree should have been dismissed as multiplicitous is also unpreserved for appellatereview, as this issue was never raised before the Supreme Court (see CPL 470.05[2]; People v Cruz, 96 NY2d 857, 858 [2001]). Under the circumstances, wedecline to review this issue in the exercise of our interest of justice jurisdiction (seeCPL 470.15 [6] [a]). However, as the People correctly concede, sexual abuse in thethird degree is a lesser included offense of sexual abuse in the first degree (seeCPL 1.20 [37]; Matter of JustinD., 114 AD3d 941, 943 [2014]; Matter of William A., 90 AD3d 651, 652 [2011]). Since thedefendant's conviction of a greater count is deemed a dismissal of a lesser count pursuantto CPL 300.40 (3) (b), we vacate the defendant's convictions of sexual abuse in the thirddegree and the sentences imposed thereon.
The sentence imposed was excessive to the extent indicated (see People v Rivera, 130 AD3d655, 656 [2015]; People v Suitte, 90 AD2d 80, 85-86 [1982]). Chambers,J.P., Austin, Miller and LaSalle, JJ., concur.