| People v Nunez-Garcia |
| 2019 NY Slip Op 09296 [178 AD3d 1087] |
| December 24, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Nunez-Garcia, Appellant. |
N. Scott Banks, Hempstead, NY (Tammy Feman and Marquetta Christy of counsel), forappellant.
Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and Judith R. Sternbergof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F.Gugerty, J.), rendered July 19, 2016, convicting him of rape in the first degree, rape in the thirddegree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions,of the suppression of physical evidence and the defendant's statements to law enforcementofficials. Justice Maltese has been substituted for former Justice Sgroi (see 22 NYCRR1250.1 [b]).
Ordered that the judgment is affirmed.
We agree with the Supreme Court's determination denying suppression of physical evidenceand the defendant's statements to law enforcement officials. The credible evidence at thesuppression hearing established that the police had probable cause to arrest the defendant (see People v Williams, 127 AD3d1114, 1115-1116 [2015]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348-349 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that the indictment was fatally defective because it did notadequately inform him of the factual allegations against him and because the charges in theindictment were multiplicitous and duplicitous is unpreserved for appellate review (seeCPL 470.05 [2]) and, in any event, without merit. An indictment must contain "[a] plain andconcise factual statement in each count which, without allegations of an evidentiary nature,. . . asserts facts supporting every element of the offense charged and the defendant'sor defendants' commission thereof with sufficient precision to clearly apprise the defendant ordefendants of the conduct which is the subject of the accusation" (CPL 200.50 [7] [a]). Here,each count of the indictment placed the defendant on notice of the conduct that was the subject ofthe accusations against him with respect to the illegal conduct in which he engaged on aparticular day with a single victim (see id.). To the extent that certain language wasomitted from the count charging the defendant with rape in the third degree, such omission was aminor defect which did not prejudice the defendant as the missing language appeared before the"to wit" clause for that count.
"An indictment is multiplicitous when two separate counts charge the same crime.Multiplicity does not exist where each count requires proof of an additional fact that the otherdoes not" (People v Saunders, 290 AD2d 461, 463 [2002] [citations and internalquotation marks omitted]). The count of rape in the first degree required an element of sexualintercourse by forcible compulsion (Penal Law § 130.35 [1]), while the count ofrape in the third degree required an element of sexual intercourse without consent of the victim(Penal Law § 130.25 [3]). The third count of sexual abuse in the first degree wasnot premised upon an act of sexual intercourse, but rather, upon other non-intercourse sexualcontact committed by the defendant. Thus, all three counts of the indictment were distinct andrequired proof of an additional fact that the others did not, so that a conviction on one or more ofthe counts would not be inconsistent with an acquittal on another (see People v Barber, 133 AD3d868, 869 [2015]; People v Saunders, 290 AD2d at 463).
"An indictment is duplicitous when a single count charges more than one offense" (People v Alonzo, 16 NY3d 267,269 [2011]). Here, the count of sexual abuse in the first degree was not duplicitous since thesexual abuse occurred during a single uninterrupted course of conduct (see id. at 270; People v Kelly, 148 AD3d 585,585 [2017]).
The defendant's contention that the prosecutor committed misconduct before the grand jury iswithout merit. The prosecution was under no obligation to present evidence that was not entirelyexculpatory and would not have materially influenced the grand jury's investigation (see People v May, 138 AD3d1024, 1024 [2016]). Moreover, the prosecutor's use of leading questions during certain,sensitive parts of the examination of the complainant before the grand jury did not render thisevidence incompetent and did not undermine the integrity of the grand jury proceedings (seePeople v Brownlee, 121 AD2d 553, 554 [1986]; see also People v Kurth, 82 AD3d 905, 906 [2011]).
The defendant is correct that, as his counsel had requested during the trial, the prosecutor wasrequired to correct the knowingly false or mistaken trial testimony of the complainant's boyfriendthat he had not testified before the grand jury or spoken to the prosecutor prior to trial (see People v Colon, 13 NY3d 343,349 [2009]; People v Steadman, 82 NY2d 1, 7 [1993]; People v Spruill, 164 AD3d 1270,1277 [2018]). However, "[w]here a prosecutor elicits or fails to correct such inaccuratetestimony, reversal and a new trial are necessary unless there is no 'reasonable possibility' that theerror contributed to the conviction" (People v Colon, 13 NY3d at 349, quoting Peoplev Pressley, 91 NY2d 825, 827 [1997]). Here, the failure to correct this testimony constitutedharmless error, as there was overwhelming evidence of the defendant's guilt and no reasonablepossibility that the defendant would have been acquitted if not for the error (see People vColon, 13 NY3d at 349; People v Spruill, 164 AD3d at 1277; see also People v Martin, 33 NY3d929, 930 [2019]; People v Crimmins, 36 NY2d 230, 237 [1975]). Further, thedefendant's contention that the prosecutor knowingly elicited false testimony from thecomplainant is without merit.
The defendant's contention that certain comments made by the prosecutor on summationdeprived him of a fair trial is unpreserved for appellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d 911,912 [2006]; People v Morris, 157AD3d 827, 828 [2018]). In any event, the challenged comments constituted either fairresponse to arguments presented in summation by defense counsel, or fair comment on theevidence and the reasonable inferences to be drawn therefrom (see People v Halm, 81NY2d 819, 821 [1993]; People vMonteleone, 71 AD3d 790, 790-791 [2010]).
The defendant's contentions that the Supreme Court deprived him of a fair trial by precludinghis counsel from making contemporaneous objections and through evidentiary rulings arewithout merit.
The Supreme Court did not violate the procedure set forth in People v O'Rama (78NY2d 270 [1991]) in responding to the jury's note, Court Exhibit 20, which requested to viewcertain evidence. At the commencement of jury deliberations, both the prosecutor and defensecounsel advised the court that they had no objection to the court providing exhibits, upon thejury's request, without first assembling counsel in the courtroom. Since the defendant consentedbeforehand to the jury receiving evidentiary exhibits in this manner, the court was not required toreconvene counsel prior to furnishing the jury with the exhibits requested in the subject jury note(see CPL 310.20 [1]; People v Damiano, 87 NY2d 477, 487 [1996]; People v Croom, 171 AD3d 781,783 [2019]; People v Headley, 170AD3d 746, 747 [2019]). The court's handling of this note requesting evidentiary exhibits didnot implicate either CPL 310.30 or the notice provision outlined in People v O'Rama(see People v Damiano, 87 NY2d at 487; People v Croom, 171 AD3d at 783;People v Headley, 170 AD3d at 747). Thus, the defendant's contention that the courtmishandled the subject jury note is unpreserved for appellate review and, in any event, withoutmerit. Moreover, the defendant's speculation that the requested items were not provided to thejury is insufficient to rebut the presumption of regularity in the proceedings (see generally People v Badia, 130AD3d 744, 746 [2015]; see e.g.People v Ragbirsingh, 153 AD3d 858, 858-859 [2017]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Austin, J.P., Roman, Maltese and LaSalle, JJ., concur.