PEOPLE v. RODRIGUEZ (2008)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered June 30, 2005, convicting defendant, after a jury trial, of attempted rape in the first degree, attempted criminal sexual act in the first degree (two counts), sexual abuse in the first degree (two counts), and assault in the second degree, and sentencing him, as a persistent violent felony offender, to five consecutive terms of 25 years to life concurrent with a sixth term of 25 years to life, unanimously affirmed.

 The court properly denied defendant's motion to suppress identification testimony.   The hearing court properly exercised its discretion (see People v. Chipp, 75 N.Y.2d 327, 337, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ) in refusing to permit defendant to call as a witness a police sketch artist who had worked with the victim to create a wanted poster.  “[T]he purpose and function of the Wade hearing is to determine whether a police-arranged pretrial identification procedure such as a lineup, was unduly suggestive” (id.).   The creation of the sketch itself was not an identification procedure (People v. Pagan, 248 A.D.2d 325, 670 N.Y.S.2d 831 [1998], affd. 93 N.Y.2d 891, 689 N.Y.S.2d 686, 711 N.E.2d 964 [1999] ).   There is no indication that the sketch was created on the basis of anything other than information supplied by the victim, or any reason to believe the process of creating a sketch impaired the fairness of the subsequent lineup.   We find nothing in People v. Maldonado, 97 N.Y.2d 522, 743 N.Y.S.2d 389, 769 N.E.2d 1281 [2002], a case dealing with the hearsay implications of admitting a sketch at trial, that supports defendant's present position.   The photographs of the lineup show that the characteristics of the participants were reasonably similar, and any differences were not sufficient to create a substantial likelihood that defendant would be singled out for identification (see Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608;  People v. Holmes, 291 A.D.2d 247, 738 N.Y.S.2d 21 [2002], lv. denied 98 N.Y.2d 676, 746 N.Y.S.2d 465, 774 N.E.2d 230 [2002] );  defendant's assertion that he was the only participant who fit the victim's description is without merit.   We have considered and rejected defendant's remaining arguments concerning the suppression hearing and the court's determination.

 None of the evidence relating to DNA violated defendant's right to confront the witnesses against him (see People v. Rawlins, 10 N.Y.3d 136, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008], 2008 WL 423397 ).

 By failing to object, by making general objections, and by failing to request further relief after an objection was sustained, defendant did not preserve his present challenges to the People's summation and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).

 The court properly imposed consecutive sentences for the five sexual offenses because they were “separate and distinct acts, notwithstanding that they occurred in the course of a continuous incident” (People v. Wynn, 35 A.D.3d 283, 284, 827 N.Y.S.2d 35 [2006], lv. denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465 [2007] ).   Each of the sex crimes was a separate “act” within the meaning of Penal Law § 15.00(1) and § 70.25(2), and nothing in the Penal Law requires any type of interval or interruption in a continuous attack in order for the individual acts to qualify as separate for sentencing purposes (see e.g. People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29 [1984] [two victims killed by separate shots fired in single incident] ).