Opinion
2017-02527 2017-02528 Ind. Nos. 277/14, 793/14
03-18-2020
The PEOPLE, etc., Respondent, v. Ramone SMITH, Appellant.
Lawrence J. Fredella, New York, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Autumn S. Hughes of counsel), for respondent.
Lawrence J. Fredella, New York, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Autumn S. Hughes of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER Appeals by the defendant from two judgments of the Supreme Court, Nassau County (Francis Ricigliano, J.), both rendered February 6, 2017, convicting him of predatory sexual assault, rape in the first degree (two counts), criminal sexual act in the first degree, and criminal possession of a weapon in the third degree under Indictment No. 277/14, and attempted rape in the first degree, attempted sexual abuse in the first degree, robbery in the third degree, and criminal possession of a weapon in the third degree under Indictment No. 793/14, upon jury verdicts, and imposing sentences.
ORDERED that the judgments are affirmed.
Under Indictment No. 277/14, the defendant was convicted of predatory sexual assault, rape in the first degree (two counts), criminal sexual act in the first degree, and criminal possession of a weapon in the third degree relating to three separate incidents involving women who were working as prostitutes. Under Indictment No. 793/14, which was consolidated for trial with the aforementioned indictment, the defendant was convicted of attempted rape in the first degree, attempted sexual abuse in the first degree, robbery in the third degree, and criminal possession of a weapon in the third degree relating to a fourth incident involving a woman working as a prostitute.
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 on each of the 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 ).
We agree with the Supreme Court's determination to deny that branch of the defendant's omnibus motion which was to sever the counts in Indictment No. 277/14 pertaining to the three separate incidents, since the nature of the evidence for each of the offenses was material and admissible as evidence upon the trial of the other counts in the indictment (see CPL 200.20[2][b] ; People v. Dobbins, 123 A.D.3d 1140, 997 N.Y.S.2d 501 ). Further, the offenses charged were properly joined in one indictment, as they were either the same or defined by similar statutory provisions, and, consequently, were the same or similar in law (see CPL 200.20[2][c] ; People v. Taylor, 164 A.D.3d 839, 839–840, 79 N.Y.S.3d 552 ). For similar reasons, we agree with the court's determination to grant the People's motion to consolidate for trial the two indictments (see CPL 200.20[2][b], [c] ; People v. Hartnagel, 176 A.D.3d 971, 971, 108 N.Y.S.3d 357 ). The evidence of the crimes was presented separately and was uncomplicated, enabling the jury to segregate the evidence (see People v. Hartnagel, 176 A.D.3d at 971, 108 N.Y.S.3d 357 ; People v. Nickel, 14 A.D.3d 869, 870, 788 N.Y.S.2d 274 ). As the People concede, the prosecutor committed a Rosario violation (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 ) by failing to provide the defendant with the supporting deposition of one of the complainants until after that complainant had completed her direct testimony. When the prosecutor discovered the error, she turned over the document to defense counsel prior to defense counsel's cross-examination of the witness and apologized to the Supreme Court and to counsel. The court granted defense counsel a continuance and issued a curative instruction to the jury so that it would not attribute trial delay to the defendant. Under these circumstances, the defendant was not prejudiced by the delayed disclosure and, therefore, is not entitled to a new trial (see People v. Thomas, 255 A.D.2d 467, 468, 682 N.Y.S.2d 219 ; cf. People v. Banch, 80 N.Y.2d 610, 616, 593 N.Y.S.2d 491, 608 N.E.2d 1069 ).
The defendant's contention that he was deprived of a fair trial by certain statements made by the prosecutor during summation is unpreserved for appellate review because the defendant either failed to object to the prosecutor's statements or made only general objections, and did not seek curative instructions or move for a mistrial when his objections were sustained (see CPL 470.05[2] ; People v. Morris, 2 A.D.3d 652, 768 N.Y.S.2d 379 ; People v. McHarris, 297 A.D.2d 824, 748 N.Y.S.2d 57 ). In any event, the prosecutor's statements during his summation, for the most part, constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v. Fuhrtz, 115 A.D.3d 760, 981 N.Y.S.2d 611 ; People v. Birot, 99 A.D.3d 933, 952 N.Y.S.2d 293 ; People v. Guevara–Carrero, 92 A.D.3d 693, 938 N.Y.S.2d 185 ; People v. McHarris, 297 A.D.2d at 825, 748 N.Y.S.2d 57 ), or were fair response to defense counsel's comments during summation (see People v. Adamo, 309 A.D.2d 808, 765 N.Y.S.2d 651 ; People v. Clark, 222 A.D.2d 446, 634 N.Y.S.2d 714 ; People v. Vaughn, 209 A.D.2d 459, 619 N.Y.S.2d 573 ), and any improper statements "were not so flagrant or pervasive as to deny the defendant a fair trial" ( People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ; see People v. Svanberg, 293 A.D.2d 555, 739 N.Y.S.2d 837 ).
The sentences imposed were not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.
RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.