Opinion
2011-06650
06-17-2015
The PEOPLE, etc., respondent, v. Justin HARRIS, appellant.
Mark Diamond, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered July 7, 2011, convicting him of burglary in the first degree, robbery in the first degree (six counts), sexual abuse in the first degree (two counts), assault in the second degree (three counts), unlawful imprisonment in the first degree (five counts), criminal possession of a weapon in the third degree, criminal possession of a weapon in the fourth degree (three counts), and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the prosecution failed to adduce legally sufficient evidence of his identity as one of the perpetrators of the crime is unpreserved for appellate review (see CPL 470.05[2] ; People v. Woods, 123 A.D.3d 1154, 999 N.Y.S.2d 524 ; People v. Warren, 50 A.D.3d 706, 707, 854 N.Y.S.2d 742 ; People v. Betts, 292 A.D.2d 539, 540, 739 N.Y.S.2d 584 ) since he made only general motions to dismiss at the close of the People's case and at the close of all evidence. In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), the identification evidence was legally sufficient. Moreover, upon reviewing the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the robbery, sexual assault, and weapons counts in the indictment are multiplicitous is unpreserved for appellate review (see CPL 210.20, 210.25 ; People v. Allen, 24 N.Y.3d 441, 444, 999 N.Y.S.2d 350, 24 N.E.3d 586 ; People v. Cruz, 96 N.Y.2d 857, 858, 730 N.Y.S.2d 29, 754 N.E.2d 1112 ; People v. Salton, 120 A.D.3d 838, 991 N.Y.S.2d 370 ; People v. Nash, 77 A.D.3d 687, 688, 908 N.Y.S.2d 708 ). In any event, the counts relating to the sexual assault charges and the counts relating to the weapons charges are not multiplicitous (see Penal Law § 20.00 ; People v. Ross, 118 A.D.3d 1413, 988 N.Y.S.2d 756 ). Further, the issue as to the robbery counts has been rendered academic (see People v. Stabb, 9 A.D.3d 738, 739, 779 N.Y.S.2d 866 ; People v. Smith, 113 A.D.2d 905, 907–908, 493 N.Y.S.2d 623 ) since the jury acquitted the defendant of count 33 relating to the robbery charge.
The defendant's contention that his Sixth Amendment right to confrontation (see Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 ; Crawford
v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ) was violated by the admission of the victims' medical records and DNA evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Jacob, 117 A.D.3d 1079, 1080, 986 N.Y.S.2d 561 ; People v. Blackman, 90 A.D.3d 1304, 1309, 935 N.Y.S.2d 181 ; People v. Sprosta, 49 A.D.3d 784, 785, 853 N.Y.S.2d 625 ). In any event, the contention is without merit, as neither the hospital records (see People v. Duhs, 16 N.Y.3d 405, 409–410, 922 N.Y.S.2d 843, 947 N.E.2d 617 ; People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d 450, 892 N.E.2d 843 ; People v. Pham, 118 A.D.3d 1159, 1162, 987 N.Y.S.2d 687 ) nor the laboratory reports generated by the Office of the Chief Medical Examiner of the City of New York (see People v. Fucito, 108 A.D.3d 777, 777, 969 N.Y.S.2d 563 ; People v. Pitre, 108 A.D.3d 643, 644, 968 N.Y.S.2d 585 ) were testimonial in nature, and the forensic biologist who conducted the actual analysis and interpretation of the data contained in the lab reports was subject to cross-examination (see People v. Brown, 13 N.Y.3d 332, 341, 890 N.Y.S.2d 415, 918 N.E.2d 927 ; People v. Dail, 69 A.D.3d 873, 874, 894 N.Y.S.2d 78 ).
The defendant's contention that the prosecutor committed misconduct on summation is unpreserved for appellate review, as he failed to object to the challenged comments (see CPL 470.05[2] ). In any event, the remarks were fair response to the defense summation (see People v. Lugg, 124 A.D.3d 679, 998 N.Y.S.2d 459 ), and the claimed inflammatory comments were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v. Joubert, 125 A.D.3d 686, 999 N.Y.S.2d 552 ). Under these circumstances, defense counsel's failure to object to the challenged remarks did not constitute ineffective assistance of counsel (see People v. Callender, 123 A.D.3d 840, 998 N.Y.S.2d 448 ; People v. Ervin, 118 A.D.3d 910, 912, 987 N.Y.S.2d 454 ).
The trial court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) was not an improvident exercise of discretion. The court balanced the relevant factors and formulated an appropriate compromise (see People v. English, 119 A.D.3d 706, 707, 988 N.Y.S.2d 697 ), and properly determined that the adjudicated infractions were probative of the defendant's veracity because they indicated his willingness to put his own interests above society's (see People v. Quezada, 116 A.D.3d 796, 983 N.Y.S.2d 326 ).
Contrary to the defendant's contention, the imposition of concurrent sentences was not mandated, as the acts constituting the relevant crimes were separate and distinct (see Penal Law § 70.25[2] ; People v. Frazier, 16 N.Y.3d 36, 40, 916 N.Y.S.2d 574, 941 N.E.2d 1151 ; People v. Starr, 114 A.D.3d 813, 814, 980 N.Y.S.2d 161 ; People v. Samms, 83 A.D.3d 1099, 921 N.Y.S.2d 317 ). Also, “[w]here, as here, separate acts are committed against different victims during the same criminal transaction, the court may properly impose consecutive sentences in the exercise of its discretion” (People v. Hamilton, 96 A.D.3d 1518, 1520, 947 N.Y.S.2d 705 [internal quotation marks omitted]; see People v. Mullgrav, 137 A.D.2d 839, 840, 525 N.Y.S.2d 302 ).
The defendant's remaining contentions are without merit.