PEOPLE v. WILLIAMS (1998)

Judgment, Supreme Court, New York County (Rena Uviller, J., on severance motion;  William Wetzel, J., at trial), rendered September 17, 1996, convicting defendant, after a jury trial, of rape in the first degree (2 counts), sodomy in the first degree and sexual abuse in the first degree, and sentencing him to consecutive terms of 7 to 21 years on each of the rape convictions and 2 to 6 years on the sodomy conviction, concurrent with a term of 1 to 3 years on the sexual abuse conviction, unanimously affirmed.

 Defendant's guilt was established by overwhelming evidence.   The jury had ample basis to credit the testimony of the two complainants as well as the People's additional witnesses and medical evidence and to reject the testimony presented by the defense.

 Defendant's motion to sever counts relating to the three rapes for which he was initially charged was properly denied.   The transactions were joinable pursuant to CPL 200.20(2)(c) and there were insufficient grounds for a discretionary severance pursuant to CPL 200.20(3) (see, People v. Streitferdt, 169 A.D.2d 171, 176, 572 N.Y.S.2d 893, lv. denied 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069).   Any error in denying defendant's severance motion would be harmless in view of the overwhelmingly evidence of guilt with respect to each of the criminal transactions.

 Defendant was not unduly prejudiced by the People's good faith failure to produce one of the complainants whose proposed testimony was outlined in the opening, and the counts involving him were dismissed.   The court's instruction and striking of police testimony referring to this complainant “minimized or negated the prejudice, if any” (People v. De Tore, 34 N.Y.2d 199, 208, 356 N.Y.S.2d 598, 313 N.E.2d 61, cert. denied 419 U.S. 1025, 95 S.Ct. 503, 42 L.Ed.2d 300).

The court's supplemental instructions were proper responses to the particular problem confronting the court, which was that of a single juror refusing to participate in deliberations, rather than that of a deadlocked jury.

We have considered and rejected defendant's remaining claims.

MEMORANDUM DECISION.