| People v Katzman |
| 2018 NY Slip Op 03147 [161 AD3d 770] |
| May 2, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eyal Katzman, Appellant. |
James E. Neuman, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry A.Schwartz, J.), rendered November 23, 2016, convicting him of criminal sexual act in the thirddegree (four counts), patronizing a prostitute in the third degree (four counts), and endangeringthe welfare of a child (five counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Between October and November 2012, the defendant allegedly lured a 16-year-old highschool student to his home and engaged in oral sexual conduct with her in exchange for money.For those alleged acts, the defendant was charged under indictment No. 1450/14 with, inter alia,criminal sexual act in the third degree, patronizing a prostitute in the third degree, andendangering the welfare of a child. After the defendant's arrest, a second girl reported that,between September and November 2012, when she was 16 years old, the defendant had alsolured her to his home and paid her money in exchange for engaging in oral and other sexualconduct with him. For those alleged acts, the defendant was charged under indictment No.284/15 with the same crimes as he was under indictment No. 1450/14. In an order dated July 6,2016, the Supreme Court granted the People's motion to consolidate the two indictments, and thetwo indictments were consolidated under indictment No. 1450/14. After a jury trial, thedefendant was convicted of four counts of criminal sexual act in the third degree, four counts ofpatronizing a prostitute in the third degree, and five counts of endangering the welfare of achild.
The Supreme Court did not improvidently exercise its discretion in consolidating the twoindictments for a single trial. Both indictments charge crimes defined by the same statutoryprovisions and could properly be consolidated under CPL 200.20 (2) (c) (see People v Renaud, 137 AD3d818, 819-820 [2016]; People vMcCrae, 69 AD3d 759, 760 [2010]). Moreover, the indictments could be consolidatedunder CPL 200.20 (2) (b), as proof of the offenses charged in one indictment would be materialand admissible as evidence in chief upon the trial of the other (see People v Burton, 83 AD3d1562 [2011]; People v Hussain,35 AD3d 504, 505 [2006]; People v Watson, 281 AD2d 691, 693 [2001]). Thedefendant's claim that the court failed to instruct the jury with respect to its duty to consider thecrimes separately is unpreserved for appellate review (see CPL 470.05 [2]; People vStewart, 178 AD2d 448 [1991]), and, in any event, without merit (see People v Harris, 29 AD3d 387,388 [2006]).
[*2] The defendant's contention thatcertain comments made by the prosecutor in summation were improper and deprived him of afair trial is unpreserved for appellate review since he either failed to object or asserted only ageneral objection to the remarks he now challenges (see CPL 470.05 [2]; People v Kaval, 154 AD3d 875[2017]; People v Elder, 152 AD3d787, 789 [2017]). In any event, the contention lacks merit. The prosecutor's commenthighlighting the defendant's failure to produce certain documentary evidence which he testifiedestablished the truth of his defense was not improper (see People v Tankleff, 84 NY2d992, 994 [1994]; People vWongsam, 105 AD3d 980, 981 [2013]; People v Floyd, 97 AD3d 837, 837-838 [2012]; People vOverlee, 236 AD2d 133, 143 [1997]). The prosecutor's other challenged remarks were eitherfair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109-110 [1976]), afair response to defense counsel's summation (see People v Marcus, 112 AD3d 652, 653 [2013]; People v Rogers, 106 AD3d 1029,1030 [2013]; People v Birot, 99AD3d 933 [2012]; People v Cox, 161 AD2d 724, 725 [1990]), or do not requirereversal as they were sufficiently addressed by the Supreme Court's instructions to the jury(see People v Elder, 152 AD3d at 789; People v Bunting, 146 AD3d 794, 795 [2017]; People v Hamilton, 135 AD3d958 [2016]).
The defendant's claim that the Supreme Court, by the sentence it imposed, penalized him forrefusing to accept a plea offer and exercising his right to a trial is unpreserved for appellatereview as he failed to assert it at the sentencing hearing (see People v Hurley, 75 NY2d887, 888 [1990]; People v Perdomo,154 AD3d 886 [2017]). In any event, the record reveals no retaliation or vindictivenessagainst the defendant for electing to proceed to trial (see People v Martinez, 26 NY3d 196, 200 [2015]; People vPerdomo, 154 AD3d at 887; Peoplev Prince, 128 AD3d 987, 988 [2015]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Balkin, J.P., Austin, Roman and Sgroi, JJ., concur.