| People v Taylor |
| 2018 NY Slip Op 05872 [164 AD3d 839] |
| August 22, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David Taylor, Appellant. |
Paul Skip Laisure, New York, NY (Steven R. Bernhard and Erica Horwitz of counsel), forappellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, andLeonid Traps of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M.Del Giudice, J.), rendered May 1, 2014, convicting him of sexual abuse in the first degree,burglary in the second degree, attempted rape in the first degree, attempted sexual abuse in thefirst degree, and assault in the second degree, upon a jury verdict, and sentencing him as apersistent violent felony offender to an indeterminate term of imprisonment of 25 years to life forsexual abuse in the first degree, to run consecutively to three concurrent indeterminate terms ofimprisonment of 25 years to life for burglary in the second degree, attempted rape in the firstdegree, and assault in the second degree, to run concurrently to a determinate term ofimprisonment of 4 years plus 10 years of postrelease supervision for attempted sexual abuse inthe first degree.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byproviding that all sentences shall run concurrently with each other; as so modified, the judgmentis affirmed.
Contrary to the defendant's contention, the trial court providently exercised its discretion inconsolidating for a single trial two indictments charging sexual offenses. In consideringconsolidation, "[t]rial courts should generally weigh the public interest in avoiding duplicative,lengthy and expensive trials against the defendant's interest in being protected from unfairdisadvantage" (People v Lane, 56 NY2d 1, 8 [1982]). Here, both indictments chargedoffenses based upon the same or similar law under the sex offense statutes (see People v Molyneaux, 49 AD3d1220 [2008]; People v Reed, 212 AD2d 962 [1995]; CPL 200.20 [2] [c]). Under thecircumstances of this case, the defendant failed to "establish that substantially more proof wouldbe required on one count than [on] any other" (People v Reed, 212 AD2d 962, 962[1995]), or that the jury would be unable to consider separately the proof as it related to eachoffense (see People v McQueen, 266 AD2d 240 [1999]).
The defendant failed to preserve for appellate review his contention that the prosecutor'ssummation comments encouraged the jury to commingle the evidence as to the separate charges(see CPL 470.05 [2]). In any event, the contention is without merit. The prosecutor'scomments constituted fair comment on the evidence (see People v Ashwal, 39 NY2d 105,109-110 [1976]; [*2]People v Herb, 110 AD3d 829, 831 [2013]), and did notencourage the jury to commingle the evidence.
The defendant failed to preserve for appellate review his contention that the trial court erredin failing to instruct the jury that it was not to commingle the evidence (see CPL 470.05[2]; People v Williams, 38 AD3d925 [2007]). In any event, the jury instructions, as a whole, were adequate (see People v Tyler, 147 AD3d1441 [2017]; People v Jones,134 AD3d 503 [2015]; People vHohl, 93 AD3d 859 [2012]; People v Gonzalez, 170 AD2d 620 [1991]).
The defendant was adjudicated a mandatory persistent violent felony offender. Although thesentence imposed was legal, under the circumstances of this case, we deem it excessive to theextent indicated herein (see People v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Balkin,Hinds-Radix and Iannacci, JJ., concur.