PEOPLE v. BLACK (2007)

 Defendant appeals from a judgment convicting him after a jury trial of rape in the first degree (Penal Law § 130.35[1] ) and criminal sexual act in the first degree (§ 130.50[1] ).   We agree with defendant that the judgment must be modified by reversing that part convicting him of rape because he was indicted on a single count of rape and the People presented evidence at trial establishing two distinct acts of sexual intercourse between defendant and the victim.   Although defendant failed to preserve his contention for our review, we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  People v. Bracewell, 34 A.D.3d 1197, 1198, 827 N.Y.S.2d 793).   The first count of the indictment charged defendant with rape in the first degree, “in that he ․ on or about the 5th day of April, 2004 ․ engaged in sexual intercourse with [the victim], by forcible compulsion.”   However, according to the testimony of the victim at trial, there were two separate acts of sexual intercourse.   Although the two acts apparently were separated by only a brief period of time, they cannot be considered “part and parcel of the [same] continuous conduct culminating in [a single] rape” (People v. Grant, 108 A.D.2d 823, 823, 485 N.Y.S.2d 299), because “each act of intercourse is a separate and distinct offense” (People v. Pries, 81 A.D.2d 1039, 1039-1040, 440 N.Y.S.2d 116;  see People v. Jiminez, 239 A.D.2d 360, 657 N.Y.S.2d 735, lv. denied 90 N.Y.2d 906, 663 N.Y.S.2d 518, 686 N.E.2d 230).  “ ‘Reversal [and dismissal of that count] is required because the jury may have convicted defendant of an unindicted rape, resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges' ” (People v. Comfort, 31 A.D.3d 1110, 1111, 817 N.Y.S.2d 811, lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71, quoting People v. McNab, 167 A.D.2d 858, 858, 562 N.Y.S.2d 590;  see People v. Grega, 72 N.Y.2d 489, 495-496, 534 N.Y.S.2d 647, 531 N.E.2d 279).   We therefore modify the judgment by reversing that part convicting defendant of rape in the first degree and dismissing count one of the indictment without prejudice to the People to re-present any appropriate charges under that count of the indictment to another grand jury (see Bracewell, 34 A.D.3d at 1199, 827 N.Y.S.2d 793;  People v. Dathan, 27 A.D.3d 575, 812 N.Y.S.2d 119, lv. denied 7 N.Y.3d 787, 821 N.Y.S.2d 817, 854 N.E.2d 1281;  People v. Levandowski, 8 A.D.3d 898, 899-900, 780 N.Y.S.2d 384).

 Contrary to defendant's further contention, the verdict is not against the weight of the evidence.   The testimony of the victim was not so inconsistent or unbelievable as to render it incredible as a matter of law (see People v. Shedrick, 104 A.D.2d 263, 274, 482 N.Y.S.2d 939, affd. 66 N.Y.2d 1015, 499 N.Y.S.2d 388, 489 N.E.2d 1290, rearg. denied 67 N.Y.2d 758, 500 N.Y.S.2d 1028, 490 N.E.2d 1234;  People v. Baker, 30 A.D.3d 1102, 817 N.Y.S.2d 793, lv. denied 7 N.Y.3d 846, 823 N.Y.S.2d 775, 857 N.E.2d 70;  People v. Drake, 247 A.D.2d 855, 855-856, 668 N.Y.S.2d 809, lv. denied 92 N.Y.2d 851, 677 N.Y.S.2d 81, 699 N.E.2d 441), and there is no basis on the record before us to disturb the jury's resolution of credibility issues (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We also reject defendant's contention that County Court erred in refusing to charge the complete definition of forcible compulsion set forth in Penal Law § 130.00(8).   The court properly “tailored its [charge] to the case before it” (People v. Grega, 72 N.Y.2d 489, 497, 534 N.Y.S.2d 647, 531 N.E.2d 279), and the court omitted the portion of the definition set forth in Penal Law § 130.00(8)(b) concerning threats that place a person in fear of immediate death or physical injury because there was no evidence that defendant had threatened the victim.   Defendant failed to preserve for our review his further contention that the court erred in failing to include the definition of “intentionally” in its instructions to the jury.   In any event, any alleged error in the court's failure to so instruct the jury is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 Defendant also failed to preserve for our review his contention that his right of confrontation was violated when the victim testified concerning hearsay statements made by her neighbor (see CPL 470.05 [2];  People v. Wegman, 2 A.D.3d 1333, 769 N.Y.S.2d 682, lv. denied 2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926).   Moreover, defendant waived that contention when he elicited the same hearsay statements of the neighbor in cross-examining the victim (see generally People v. Carr, 267 A.D.2d 1062, 1063, 703 N.Y.S.2d 846, lv. denied 95 N.Y.2d 833, 713 N.Y.S.2d 140, 735 N.E.2d 420;  People v. Santos-Sosa, 233 A.D.2d 833, 649 N.Y.S.2d 622, lv denied 89 N.Y.2d 988, 656 N.Y.S.2d 747, 678 N.E.2d 1363).   We further conclude that the court did not err in failing to give defendant notice of a note from the jury asking to review the medical records and in failing to afford defendant an opportunity to respond to that note.   We note that defense counsel and the prosecutor had previously agreed to allow the jury to examine those records and, in any event, the jury's note did not constitute a request for substantive information implicating defendant's right to notice of the request (see People v. Damiano, 87 N.Y.2d 477, 487, 640 N.Y.S.2d 451, 663 N.E.2d 607;  People v. Green, 37 A.D.3d 1131, 828 N.Y.S.2d 826).  Defendant failed to preserve for our review his further contention that he was deprived of a fair trial as a result of prosecutorial misconduct on summation (see CPL 470.05[2];  People v. Caleb, 273 A.D.2d 881, 710 N.Y.S.2d 263, lv. denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366).   In any event, the comments, considered in context, were not so egregious or improper as to deny defendant a fair trial (see People v. Hopkins, 58 N.Y.2d 1079, 1083, 462 N.Y.S.2d 639, 449 N.E.2d 419;  People v. Spirles, 275 A.D.2d 980, 982, 713 N.Y.S.2d 434, lv. denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87;   People v. Tobias, 273 A.D.2d 925, 926, 711 N.Y.S.2d 652, lv. denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154).   Defendant also failed to preserve for our review his contention that he was deprived of a fair trial based on various instances of judicial misconduct (see CPL 470.05 [2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of rape in the first degree and dismissing count one of the indictment without prejudice to the People to re-present any appropriate charges under that count of the indictment to another grand jury and as modified the judgment is affirmed.

MEMORANDUM: