Opinion
2016–12962 Ind.No. 1450/14
05-02-2018
The PEOPLE, etc., respondent, v. Eyal KATZMAN, appellant.
James E. Neuman, New York, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.
James E. Neuman, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SANDRA SGROI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County ( Barry A. Schwartz, J.), rendered November 23, 2016, convicting him of criminal sexual act in the third degree (four counts), patronizing a prostitute in the third degree (four counts), and endangering the welfare of a child (five counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Between October and November 2012, the defendant allegedly lured a 16–year–old high school student to his home and engaged in oral sexual conduct with her in exchange for money. For those alleged acts, the defendant was charged under Indictment No. 1450/14 with, inter alia, criminal sexual act in the third degree, patronizing a prostitute in the third degree, and endangering the welfare of a child. After the defendant's arrest, a second girl reported that, between September and November 2012, when she was 16 years old, the defendant had also lured her to his home and paid her money in exchange for engaging in oral and other sexual conduct with him. For those alleged acts, the defendant was charged under Indictment No. 284/15 with the same crimes as he was under Indictment No. 1450/14. In an order dated July 6, 2016, the Supreme Court granted the People's motion to consolidate the two indictments, and the two indictments were consolidated under Indictment No. 1450/14. After a jury trial, the defendant was convicted of four counts of criminal sexual act in the third degree, four counts of patronizing a prostitute in the third degree, and five counts of endangering the welfare of a child.
The Supreme Court did not improvidently exercise its discretion in consolidating the two indictments for a single trial. Both indictments charge crimes defined by the same statutory provisions and could properly be consolidated under CPL 200.20(2)(c) (see People v. Renaud, 137 A.D.3d 818, 819–820, 27 N.Y.S.3d 578 ; People v. McCrae, 69 A.D.3d 759, 760, 895 N.Y.S.2d 101 ). Moreover, the indictments could be consolidated under CPL 200.20(2)(b), as proof of the offenses charged in one indictment would be material and admissible as evidence in chief upon the trial of the other (see People v. Burton, 83 A.D.3d 1562, 921 N.Y.S.2d 430 ; People v. Hussain, 35 A.D.3d 504, 505, 825 N.Y.S.2d 142 ; People v. Watson, 281 A.D.2d 691, 693, 721 N.Y.S.2d 700 ). The defendant's claim that the court failed to instruct the jury with respect to its duty to consider the crimes separately is unpreserved for appellate review (see CPL 470.05[2] ; People v. Stewart, 178 A.D.2d 448, 577 N.Y.S.2d 416 ), and, in any event, without merit (see People v. Harris, 29 A.D.3d 387, 388, 813 N.Y.S.2d 904 ).
The defendant's contention that certain comments made by the prosecutor in summation were improper and deprived him of a fair trial is unpreserved for appellate review since he either failed to object or asserted only a general objection to the remarks he now challenges (see CPL 470.05[2] ; People v. Kaval, 154 A.D.3d 875, 63 N.Y.S.3d 411 ; People v. Elder, 152 A.D.3d 787, 789, 59 N.Y.S.3d 134 ). In any event, the contention lacks merit. The prosecutor's comment highlighting the defendant's failure to produce certain documentary evidence which he testified established the truth of his defense was not improper (see People v. Tankleff, 84 N.Y.2d 992, 994, 622 N.Y.S.2d 503, 646 N.E.2d 805 ; People v. Wongsam, 105 A.D.3d 980, 981, 963 N.Y.S.2d 345 ; People v. Floyd, 97 A.D.3d 837, 837–838, 948 N.Y.S.2d 683 ; People v. Overlee, 236 A.D.2d 133, 143, 666 N.Y.S.2d 572 ). The prosecutor's other challenged remarks were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), a fair response to defense counsel's summation (see People v. Marcus, 112 A.D.3d 652, 653, 975 N.Y.S.2d 771 ; People v. Rogers, 106 A.D.3d 1029, 1030, 965 N.Y.S.2d 361 ; People v. Birot, 99 A.D.3d 933, 952 N.Y.S.2d 293 ; People v. Cox, 161 A.D.2d 724, 725, 555 N.Y.S.2d 862 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury (see People v. Elder, 152 A.D.3d at 789, 59 N.Y.S.3d 134 ; People v. Bunting, 146 A.D.3d 794, 795, 43 N.Y.S.3d 910 ; People v. Hamilton, 135 A.D.3d 958, 22 N.Y.S.3d 904 ).
The defendant's claim that the Supreme Court, by the sentence it imposed, penalized him for refusing to accept a plea offer and exercising his right to a trial is unpreserved for appellate review as he failed to assert it at the sentencing hearing (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ; People v. Perdomo, 154 A.D.3d 886, 64 N.Y.S.3d 47 ). In any event, the record reveals no retaliation or vindictiveness against the defendant for electing to proceed to trial (see People v. Martinez, 26 N.Y.3d 196, 200, 21 N.Y.S.3d 196, 42 N.E.3d 693 ; People v. Perdomo, 154 A.D.3d at 887, 64 N.Y.S.3d 47 ; People v. Prince, 128 A.D.3d 987, 988, 10 N.Y.S.3d 146 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.