Opinion
2012-05-1
The PEOPLE, etc., respondent, v. Leonides BONILLA, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered July 24, 2008, convicting him of rape in the first degree, attempted rape in the first degree, sexual abuse in the first degree (two counts), and criminal sexual act in the first degree (two counts), after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his untimely motion for a hearing to suppress evidence pursuant to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 because he did not explain why the motion could not have been made sooner ( see CPL 255.20; People v. Greaves, 12 A.D.3d 690, 690–691, 784 N.Y.S.2d 884; People v. Anderson, 201 A.D.2d 658, 659, 608 N.Y.S.2d 267). Moreover, his trial counsel's failure to timely move to suppress evidence pursuant to Payton did not constitute ineffective assistance of counsel, since the motion was not warranted by the facts and his counsel otherwise provided meaningful representation ( see People v. Howard, 37 A.D.3d 494, 495, 827 N.Y.S.2d 883; People v. Jackson, 17 A.D.3d 148, 149, 792 N.Y.S.2d 450; People v. Coats, 195 A.D.2d 519, 601 N.Y.S.2d 830).
The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review ( see 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 People ( 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 ( see People v. Taylor, 94 N.Y.2d 910, 911, 707 N.Y.S.2d 618, 729 N.E.2d 337). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder'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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; 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 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).
The Supreme Court legally imposed consecutive sentences upon the defendant's convictions of rape in the first degree and criminal sexual act in the first degree, as each count involved a separate sexual act constituting a distinct offense ( see People v. Colon, 61 A.D.3d 772, 773, 876 N.Y.S.2d 525; People v. Gersten, 280 A.D.2d 487, 487–488, 719 N.Y.S.2d 900; People v. Benn, 213 A.D.2d 489, 623 N.Y.S.2d 634; People v. Rivera, 186 A.D.2d 594, 596, 588 N.Y.S.2d 391). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).