| People v Smith |
| 2020 NY Slip Op 01936 [181 AD3d 826] |
| March 18, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ramone Smith, Appellant. |
Lawrence J. Fredella, New York, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Autumn S.Hughes of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Nassau County(Francis Ricigliano, J.), both rendered February 6, 2017, convicting him of predatorysexual assault, rape in the first degree (two counts), criminal sexual act in the first degree,and criminal possession of a weapon in the third degree under Indictment No. 277/14,and attempted rape in the first degree, attempted sexual abuse in the first degree, robberyin the third degree, and criminal possession of a weapon in the third degree underIndictment No. 793/14, upon jury verdicts, and imposing sentences.
Ordered that the judgments are affirmed.
Under Indictment No. 277/14, the defendant was convicted of predatory sexualassault, rape in the first degree (two counts), criminal sexual act in the first degree, andcriminal possession of a weapon in the third degree relating to three separate incidentsinvolving women who were working as prostitutes. Under Indictment No. 793/14, whichwas consolidated for trial with the aforementioned indictment, the defendant wasconvicted of attempted rape in the first degree, attempted sexual abuse in the first degree,robbery in the third degree, and criminal possession of a weapon in the third degreerelating to a fourth incident involving a woman working as a prostitute.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (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 on each of the convictions was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
We agree with the Supreme Court's determination to deny that branch of thedefendant's omnibus motion which was to sever the counts in Indictment No. 277/14pertaining to the three separate incidents, since the nature of the evidence for each of theoffenses was material and admissible as evidence upon the trial of the other counts in theindictment (see CPL 200.20 [2] [b]; People v Dobbins, 123 AD3d 1140 [2014]). Further, theoffenses charged were properly joined in one indictment, as they were either the same ordefined by similar statutory provisions, and, consequently, were the same or similar inlaw (see CPL 200.20 [2] [c]; People v Taylor, 164 AD3d 839, 839-840 [2018]). Forsimilar reasons, we agree with the court's determination to grant the People's motion toconsolidate for trial the two indictments (see CPL 200.20 [2] [b], [c]; People v Hartnagel, 176 AD3d971, 971 [2019]). The evidence of the crimes was presented separately and wasuncomplicated, enabling the jury to segregate the evidence (see People vHartnagel, 176 AD3d at 971; People v Nickel, 14 AD3d 869, 870 [2005]).
As the People concede, the prosecutor committed a Rosario violation (seePeople v Rosario, 9 NY2d 286 [1961]) by failing to provide the defendant with thesupporting deposition of one of the complainants until after that complainant hadcompleted her direct testimony. When the prosecutor discovered the error, she turnedover the document to defense counsel prior to defense counsel's cross-examination of thewitness and apologized to the Supreme Court and to counsel. The court granted defensecounsel a continuance and issued a curative instruction to the jury so that it would notattribute trial delay to the defendant. Under these circumstances, the defendant was notprejudiced by the delayed disclosure and, therefore, is not entitled to a new trial (seePeople v Thomas, 255 AD2d 467, 468 [1998]; cf. People v Banch, 80 NY2d610, 616 [1992]).
The defendant's contention that he was deprived of a fair trial by certain statementsmade by the prosecutor during summation is unpreserved for appellate review becausethe defendant either failed to object to the prosecutor's statements or made only generalobjections, and did not seek curative instructions or move for a mistrial when hisobjections were sustained (see CPL 470.05 [2]; People v Morris, 2 AD3d652 [2003]; People v McHarris, 297 AD2d 824 [2002]). In any event, theprosecutor's statements during his summation, for the most part, constituted fair commenton the evidence and the inferences to be drawn therefrom (see People v Fuhrtz, 115 AD3d760 [2014]; People vBirot, 99 AD3d 933 [2012]; People v Guevara-Carrero, 92 AD3d 693 [2012];People v McHarris, 297 AD2d at 825), or were fair response to defense counsel'scomments during summation (see People v Adamo, 309 AD2d 808 [2003];People v Clark, 222 AD2d 446 [1995]; People v Vaughn, 209 AD2d 459[1994]), and any improper statements "were not so flagrant or pervasive as to deny thedefendant a fair trial" (People vAlmonte, 23 AD3d 392, 394 [2005]; see People v Svanberg, 293 AD2d555 [2002]).
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are without merit. Rivera, J.P., Chambers,Miller and Connolly, JJ., concur.