Opinion
April 21, 1994
Appeal from the County Court of Clinton County (Lewis, J.).
The crimes of which defendant stands convicted were committed after the victim, who was acquainted with defendant, agreed to give defendant a ride which he had requested. The victim testified how defendant directed her to drive to various houses and she was unaware of why defendant was doing this. Her infant daughter was sleeping in the back seat of the car at the time. Defendant claims that the stops were for the purpose of purchasing marihuana and that it was the victim who so requested. It was during this trip, when the car was in an isolated area, that defendant allegedly pulled the emergency brake on three separate occasions and forcibly committed the crimes of which he stands convicted. The baby was crying in the back seat during the incidents.
Defendant was charged in seven separate counts with crimes involving forcible sex on the victim and for endangering the welfare of the child. Defendant was convicted of three of the crimes charged and sentenced as a second felony offender to two terms of imprisonment of 7 1/2 to 15 years for the convictions of rape in the first degree and sodomy in the first degree, those sentences to run consecutively to one another, and also to a concurrent term of one year for his conviction of endangering the welfare of the child. Defendant appeals from the judgment.
After sentencing, defendant brought a CPL article 440 motion, contending that the prior conviction should not have been counted against him because he was a youthful offender at the time of the prior conviction. This relief was denied, and defendant was granted permission to appeal from the order.
Initially, we note that the testimony offered by the victim and supported by medical evidence was legally sufficient to support defendant's conviction of rape in the first degree and sodomy in the first degree and the convictions were not against the weight of the evidence (see, People v Murphy, 188 A.D.2d 742, 743, lv denied 81 N.Y.2d 890). We also find no basis in the record for defendant's claim that he was prejudiced by a conflict of interest because the law firm of the District Attorney's husband represented clients who were opposed to defendant's interests (see, Matter of Schumer v Holtzman, 60 N.Y.2d 46, 55). Furthermore, this contention was not appropriately preserved for appellate review (see, People v Krom, 91 A.D.2d 39, 47, affd 61 N.Y.2d 187).
Defendant also argues that the jury verdict was inconsistent or compromised because defendant was not convicted of certain crimes that required the element of forcible compulsion but was convicted of other crimes that required proof of forcible compulsion. Reviewing County Court's charge, as required by People v Tucker ( 55 N.Y.2d 1, 6-7), we find defendant's claim in this regard to be untenable. The jury found defendant guilty of the two crimes which were supported by physical evidence, as well as the victim's testimony. The convictions do not indicate inconsistent or compromised verdicts (see, e.g., People v Goodfriend, 100 A.D.2d 781, 782, affd 64 N.Y.2d 695).
As to defendant's claim that County Court erred in denying defendant's request to charge voluntariness with respect to certain incriminating statements he made to police, we find no merit. Defendant elected to speak after he had been given Miranda warnings and waived his right to remain silent (see, People v Savage, 50 N.Y.2d 673, 678, cert denied 449 U.S. 1016). The prosecution's questioning of defendant about omissions that defendant made when he elected to speak were admissible for impeachment purposes (see, supra, at 679). Defendant's request to charge on this issue was, therefore, properly denied. Defendant raises these same issues and others on his claim that he was deprived of a fair trial. As previously found and revealed by the record, defendant's right to remain silent was not violated by the District Attorney. We have also examined defendant's claim that the District Attorney intimidated defense witnesses and find the contention baseless. Nor do we find that the District Attorney's summation was unduly prejudicial. The District Attorney responded to remarks made by defense counsel during his summation and, as such, the response was not improper (see, People v Taylor, 172 A.D.2d 784, 785, lv denied 78 N.Y.2d 958). Defendant also complains that in the summation the District Attorney unfairly bolstered the testimony of his own witnesses. Even if we agreed with this contention, the impropriety would be no more than harmless error (see, People v Galloway, 54 N.Y.2d 396, 399; People v Konigsberg, 137 A.D.2d 142, 148, lv denied 72 N.Y.2d 912).
Finally, defendant argues, as he did on his CPL article 440 motion, that he should have been considered a youthful offender in regard to his 1984 crime, which would preclude the use of that crime as a predicate felony for sentencing purposes. Inasmuch as defendant never requested youthful offender treatment at the time of his prior conviction in 1984, the issue was waived (see, People v Williams, 133 A.D.2d 871, lv denied 70 N.Y.2d 1012; People v Ferguson, 119 A.D.2d 338, 342, lv denied 69 N.Y.2d 711). In these circumstances, defendant's request for a hearing on whether he should have been adjudicated a youthful offender in 1984 was properly denied. Considering the nature of defendant's conviction and the violence he employed, as well as his past record, we find no reason to reduce the sentence imposed (see, People v Zehner, 112 A.D.2d 465, 467, lv denied 66 N.Y.2d 619). Accordingly, both the judgment and order appealed from are affirmed.
Cardona, P.J., Mercure, White and Weiss, JJ., concur. Ordered that the judgment and order are affirmed.