On 10 March 2003, the County Court of Suffolk County rendered judgment convicting defendant of rape in the first degree (five counts), sexual abuse in the first degree (seventeen counts), and endangering the welfare of a child in the first degree (two counts), upon a jury verdict. The criminal defendant filed an appeal from the said judgment and brought up for review the denial of the defendant’s motions to suppress the testimony of the complainants, and the denial of his separate motion to sever the counts as to one complainant from the counts as to the other complainant.
The Appellate Court affirmed the County Court’s decision.
Here, the defendant was tried under a multi-count indictment on charges of rape in the first degree, sexual abuse in the first degree, and endangerment of one child, and on charges of sexual abuse in the first degree and endangerment of another child. Based on the records of the case, the County Court providently exercised its discretion in denying the defendant’s motion to sever the charges in the indictment pertaining to each child since the charges involved the same or similar law, and there was nothing in the record indicating that the jury was unable to separately consider the discrete charges, as held in the cases of People v Berta in 1995; People v Prezioso in 1993; and People v Nickel in 2005. The County Court also properly denied the defendant’s motion to suppress the testimony of the complainants. Pursuant to the court’s ruling in the cases of People v Kemp in 1998; People v Alvarez in 1993; and People v Michael M. in 1994, in the absence of any non-speculative evidence that the children’s testimony resulted from undue suggestion by persons who interviewed them, the motion was properly denied. The County Court also correctly concluded, following an in-camera inspection, that the complainants’ school records and Suffolk County Child Protective Services files were neither exculpatory nor material. This was the ruling in the cases of Pennsylvania v Ritchie in 1987; People v Vilardi in 1990; and People v Gissendanner in 1979. With regard to the defendant’s contention that the prosecutor’s summation required a reversal of the conviction, this was unpreserved for appellate review since the defendant failed to object or raised only general objections to the prosecutor’s remarks. The defendant did not request curative instructions when his objections were sustained, and only belatedly moved for a mistrial after the case was submitted to the jury. In any event, the challenged remarks were either responsive to the defense counsel’s summation or fair comment upon the evidence. With regard to the defendant’s contention that he was denied the effective assistance of counsel, this was bereft of merit. As held in the cases of People v Gonzalez in 2005 and People v Benevento, unsuccessful trial strategies and tactics do not constitute ineffective assistance of counsel. With regard to the defendant’s remaining contentions, these were unpreserved for appellate review and, in any event, were without merit. No robbery was involved.
Meanwhile, on 6 April 2009, a resentence of another defendant was imposed by the County Court of Suffolk County upon his conviction of rape in the first degree (two counts), sodomy in the first degree (three counts), sexual abuse in the first degree (two counts), and robbery in the third degree, and upon his plea of guilty. He was imposed periods of post-release supervision in addition to the determinate terms of imprisonment previously imposed on 14 February 2000. The defendant appealed from the County Court’s resentence.
The Appellate Court affirmed the County Court’s resentence.
Here, the Appellate Court reviewed the record and agreed with the defendant’s assigned counsel that there were no non-frivolous issues which could be raised on appeal. Thus, the defendant’s counsel’s application for leave to withdraw as counsel was granted.
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