People v. Renaud

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 stepniece’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 NY3d 484 , 492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 , 621 [1983]), 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 NY3d 342 , 348 [2007]), 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 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490 , 495 [1987]). 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 NY3d 633 [2006]).

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 relat

ing to sex offenses and, therefore, could properly be consolidated under CPL 200.20 (2) (c) (see People v McCrae, 69 AD3d 759 , 760 [2010]; People v Burke, 287 AD2d 512 , 514 [2001]). 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 AD3d 153 , 163 [2013]) and, in any event, without merit (see People v Harris, 29 AD3d 387 , 388 [2006]).

The defendant’s contention that certain counts in the consolidated indictment were multiplicitous is unpreserved for appellate review (see People v Cruz, 96 NY2d 857 [2001]) and, in any event, without merit (see People v Noble, 131 AD3d 550 [2015]; People v Salton, 120 AD3d 838 [2014]; People v Saunders, 290 AD2d 461 [2002]; cf. People v Beltran, 110 AD3d at 163 ).

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 NY2d 10 , 16-18 [1993]) is unpreserved for appellate review (see CPL 470.05 [2]; People v Honghirun, 133 AD3d 882 [2015]; People v Jean, 117 AD3d 875 , 878 [2014]). Moreover, the contention was waived, insofar as the defense elicited the challenged testimony from certain witnesses on cross-examination (see People v Jean, 117 AD3d at 878 ; People v Stalter, 77 AD3d 776 , 776-777 [2010]; People v Grant, 54 AD3d 967 , 967 [2008]; People v Bryan, 50 AD3d 1049 , 1050-1051 [2008]).

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 AD3d 998 , 999 [2015]) and waived (see People v Cleophus, 81 AD3d 844 , 846 [2011]).

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 NY2d 819 , 821 [1993]; People v Galloway, 54 NY2d 396 , 399 [1981]; People v Ashwal, 39 NY2d 105 , 109-110 [1976]).

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 mat

ter 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 AD3d 1108 , 1109 [2011]; see People v Rosado, 134 AD3d 1133 [2015]). 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 AD3d 730 , 732 [2013]; cf. People v Crump, 53 NY2d 824 , 825 [1981]). 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 AD3d at 732 ; People v Freeman, 93 AD3d 805 , 806 [2012]; People v Maxwell, 89 AD3d at 1109 ).

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 NY2d 887 , 888 [1990]; People v Jimenez, 84 AD3d 1268 , 1269 [2011]). 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 AD3d 730 , 731-732 [2010]; People v Johnson, 76 AD3d 1103 [2010]; People v Toussaint, 74 AD3d 846 [2010]).

The defendant’s remaining contention is without merit.

Chambers, J.P., Austin, Miller and LaSalle, JJ., concur.