Opinion
2014–05271, 2014–05272 Ind. Nos. 498/12, 54/13
12-28-2022
The PEOPLE, etc., respondent, v. Kerbet DIXON, appellant.
Patricia Pazner, New York, NY (David L. Goodwin and David Fitzmaurice of counsel), for appellant, and appellant pro se. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
Patricia Pazner, New York, NY (David L. Goodwin and David Fitzmaurice of counsel), for appellant, and appellant pro se.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, JANICE A. TAYLOR, JJ.
DECISION & ORDER Appeal by the defendant from two judgments of the Supreme Court, Queens County (Richard L. Buchter, J.), both rendered April 21, 2014, convicting him of course of sexual conduct against a child in the first degree, sexual abuse in the third degree, endangering the welfare of a child, promoting a sexual performance by a child (150 counts), and possessing a sexual performance by a child (150 counts), upon a jury verdict, and course of sexual conduct against a child in the first degree, endangering the welfare of a child, and rape in the third degree (two counts), upon his plea of guilty, under Indictment No. 498/12, and possessing a sexual performance by a child (334 counts) under Indictment No. 54/13, upon a jury verdict, and imposing sentences.
ORDERED that the judgments are affirmed. The Supreme Court properly denied that branch of the defendant's omnibus motion which was to sever counts 1 through 7 from counts 8 through 307 under Indictment No. 498/12, since the nature of the proof for the first set of charges was material and admissible as evidence upon the trial of the second set of charges (see CPL 200.20[2][b] ; People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083 ; People v. Smith, 153 A.D.3d 1288, 62 N.Y.S.3d 394 ). As the offenses were properly joined in one indictment from the outset pursuant to CPL 200.20(2)(b), the court lacked the statutory authority to sever them (see CPL 200.20[3] ; People v. Bongarzone, 69 N.Y.2d at 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083 ).
The defendant's contention that the evidence was legally insufficient to support his convictions of course of sexual conduct against a child in the first degree under count 3 of Indictment No. 498/12, and of promoting a sexual performance by a child, is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt as to those charges (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[1] ; People v. Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt with respect to those convictions was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Contrary to the defendant's contention, the record demonstrates that his decision to waive his right to counsel and to proceed pro se was unequivocal, knowing, voluntary, and intelligent (see People v. Bynum, 171 A.D.3d 1204, 98 N.Y.S.3d 641 ). To ascertain that such a waiver is knowing, voluntary, and intelligent, "a court must undertake a searching inquiry designed to insur[e] that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel" ( People v. Baines, 39 N.Y.3d 1, 2, 176 N.Y.S.3d 843, 197 N.E.3d 1282 [internal quotation marks omitted]; see People v. Crampe, 17 N.Y.3d 469, 481, 932 N.Y.S.2d 765, 957 N.E.2d 255 ). There is no "rigid formula" to be applied ( People v. Arroyo, 98 N.Y.2d 101, 104, 745 N.Y.S.2d 796, 772 N.E.2d 1154 ), and the inquiry "may occur in a nonformalistic, flexible manner" ( People v. Providence, 2 N.Y.3d 579, 580, 780 N.Y.S.2d 552, 813 N.E.2d 632 [internal quotation marks omitted]; see People v. Baines, 39 N.Y.3d at 2, 176 N.Y.S.3d 843, 197 N.E.3d 1282 ).
Here, the Supreme Court conducted the requisite "searching inquiry" ( People v. Baines , 39 N.Y.3d at 2, 176 N.Y.S.3d 843, 197 N.E.3d 1282 ), including "warn[ing][the] defendant forcefully that he did not have the training or knowledge to defend himself, that others who had done so had been unsuccessful and that if he insisted upon appearing pro se he would be held to the same standards of procedure as would an attorney" ( People v. Bynum , 171 A.D.3d at 1204, 98 N.Y.S.3d 641, quoting People v. Vivenzio , 62 N.Y.2d 775, 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254 ).
The defendant's contention that he was subject to multiple punishments for the same offense in violation of double jeopardy principles is unpreserved for appellate review (see CPL 470.05[2] ; People v. Gonzalez, 99 N.Y.2d 76, 82, 751 N.Y.S.2d 830, 781 N.E.2d 894 ; People v. McDonnell, 201 A.D.3d 951, 951, 162 N.Y.S.3d 408 ), and we decline to reach it in the exercise of our interest of justice jurisdiction.
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are partially unpreserved for appellate review, and, in any event, without merit.
IANNACCI, J.P., CHAMBERS, MALTESE and TAYLOR, JJ., concur.