Opinion
03-02-2016
The PEOPLE, etc., respondent, v. Stephen RENAUD, appellant.
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered October 25, 2013, convicting him of rape in the second degree and course of sexual conduct against a child in the first degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Between January 2008 and May 2008, the defendant allegedly engaged in sexual intercourse with his 13–year–old stepdaughter, who became pregnant and gave birth to a child. For those alleged acts, the defendant was charged under Indictment No. 7502/10 with rape in the second degree, and other related crimes. After the defendant's arrest, his stepniece reported that he had sexually abused her as well, beginning in September or October 2005, when she was 8 years old, until March 2007, and again during the period of October 2007 to July 2008. Based upon the step-niece's allegations, the defendant was charged under Indictment No. 9219/12 with course of sexual conduct against a child in the first degree and related crimes. In an order dated April 3, 2013, the Supreme Court granted the People's motion to consolidate the two indictments, and the two indictments were consolidated under Indictment No. 7502/10. After a jury trial, the defendant was convicted of rape in the second degree and two counts of course of sexual conduct against a child in the first degree.
The defendant failed to preserve for appellate review his contention that the evidence was legally insufficient to support his convictions (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, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt. 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, 348, 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, 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 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 trial court did not improvidently exercise its discretion in consolidating the two indictments for a single trial. Both indictments charge offenses under Penal Law article 130 relating to sex offenses and, therefore, could properly be consolidated under CPL 200.20(2)(c) (see People v. McCrae, 69 A.D.3d 759, 760, 895 N.Y.S.2d 101; People v. Burke, 287 A.D.2d 512, 514, 731 N.Y.S.2d 467). The defendant's claim that the trial 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. Beltran, 110 A.D.3d 153, 163, 970 N.Y.S.2d 289) 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 counts in the consolidated indictment were multiplicitous is unpreserved for appellate review (see People v. Cruz, 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112) and, in any event, without merit (see People v. Noble, 131 A.D.3d 550, 14 N.Y.S.3d 697; People v. Salton, 120 A.D.3d 838, 991 N.Y.S.2d 370; People v. Saunders, 290 A.D.2d 461, 736 N.Y.S.2d 90; cf. People v. Beltran, 110 A.D.3d at 163, 970 N.Y.S.2d 289).
The defendant's contention that he was denied due process when the prosecutor presented inadmissible and excessive outcry testimony from multiple witnesses (see generally People v. McDaniel, 81 N.Y.2d 10, 16–18, 595 N.Y.S.2d 364, 611 N.E.2d 265) is unpreserved for appellate review (see CPL 470.05[2]; People v. Honghirun, 133 A.D.3d 882, 20 N.Y.S.3d 409; People v. Jean, 117 A.D.3d 875, 878, 985 N.Y.S.2d 669). Moreover, the contention was waived, insofar as the defense elicited the challenged testimony from certain witnesses on cross-examination (see People v. Jean, 117 A.D.3d at 878, 985 N.Y.S.2d 669; People v. Stalter, 77 A.D.3d 776, 776–777, 909 N.Y.S.2d 516; People v. Grant, 54 A.D.3d 967, 967, 864 N.Y.S.2d 134; People v. Bryan, 50 A.D.3d 1049, 1050–1051, 856 N.Y.S.2d 227).
The defendant's contention that the court erred by permitting the People to introduce into evidence a photograph depicting one of the complainants is unpreserved for appellate review (see CPL 470.05[2]; People v. Stevenson, 129 A.D.3d 998, 999, 11 N.Y.S.3d 646) and waived (see People v. Cleophus, 81 A.D.3d 844, 846, 916 N.Y.S.2d 624).
The defendant's arguments regarding the prosecutor's allegedly improper comments during summation are unpreserved for appellate review. In any event, the remarks were within the broad bounds of permissible rhetorical comment, fair response to the defendant's summation, or fair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281; People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564).
The defendant's claim that he was deprived of the constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, namely, defense counsel's failure to secure and consult an expert witness. This constitutes a “mixed claim” of ineffective assistance (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386; see People v. Rosado, 134 A.D.3d 1133, 22 N.Y.S.3d 235). It is not evident from the matter appearing on the record that the defendant was not provided with meaningful representation (see People v. Addison, 107 A.D.3d 730, 732, 966 N.Y.S.2d 217; cf. People v. Crump, 53 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Addison, 107 A.D.3d at 732, 966 N.Y.S.2d 217; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386).
The defendant's contention that the sentencing court punished him for exercising his right to a jury trial rather than accepting a plea offer is unpreserved for appellate review (see CPL 470.05[2]; People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017; People v. Jimenez, 84 A.D.3d 1268, 1269, 923 N.Y.S.2d 354). In any event, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is not, standing alone, an indication that the defendant was punished for exercising his right to trial (see People v. Givhan, 78 A.D.3d 730, 731–732, 911 N.Y.S.2d 83; People v. Johnson, 76 A.D.3d 1103, 908 N.Y.S.2d 247; People v. Toussaint, 74 A.D.3d 846, 902 N.Y.S.2d 165).
The defendant's remaining contention is without merit.