PEOPLE v. GARING (2007)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered February 13, 2004, convicting him of possessing a sexual performance by a child (twenty-three counts), assault in the third degree (two counts), sexual abuse in the first degree (two counts), attempted sodomy in the first degree, and endangering the welfare of a child (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Since the defendant failed to demonstrate that he was substantially prejudiced by the late disclosure of certain Rosario material (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64), the defendant is not entitled to reversal of the judgment of conviction (see CPL 240.75;  People v. Poladian, 2 A.D.3d 755, 768 N.Y.S.2d 646;  People v. King, 298 A.D.2d 530-531, 748 N.Y.S.2d 665;  People v. Page, 296 A.D.2d 427, 745 N.Y.S.2d 193).

 Contrary to the defendant's contentions, the court providently exercised its discretion in admitting evidence regarding certain uncharged crimes since it was probative of the defendant's knowledge of his possession of and intent to possess images of child pornography (see People v. Allweiss, 48 N.Y.2d 40, 46-47, 421 N.Y.S.2d 341, 396 N.E.2d 735;  People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286;  People v. Vega, 23 A.D.3d 680, 805 N.Y.S.2d 642;  People v. Dugger, 236 A.D.2d 483, 483, 654 N.Y.S.2d 28).   Moreover, this evidence regarding certain uncharged crimes was “inextricably interwoven” with otherwise admissible evidence of certain of the crimes charged and its probative value outweighed any possible prejudice (People v. Alvino, 71 N.Y.2d 233, 241-242, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Mitchell, 40 A.D.2d 117, 119, 338 N.Y.S.2d 313).   While the preferred procedure may have been for the prosecutor to seek a pretrial hearing and ruling as to the admission of such uncharged crimes, the defendant did not demonstrate that he was prejudiced in any way by the timing of the ruling, and as such, it was within the court's discretion to admit such evidence despite the People's failure to provide advance notice of their intent to introduce such evidence (see People v. McLeod, 279 A.D.2d 372, 719 N.Y.S.2d 557).

 The defendant failed to preserve for appellate review his contention that the court committed reversible error in connection with its charge to an individual juror who requested to speak to the judge to express that she was having difficulty making a decision, since he did not raise any objection to the court's instruction and in fact, agreed to such an instruction (see CPL 470.05[2] ).   In any event, the trial court's charge to the juror to follow its prior instructions to the jury was proper, as it was neutral and did not seek to coerce the juror into accepting a particular view of the facts (see People v. Page, 47 N.Y.2d 968, 969-970, 419 N.Y.S.2d 958, 393 N.E.2d 1031,cert. denied 444 U.S. 936, 100 S.Ct. 285, 62 L.Ed.2d 195).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's challenges to the prosecutor's summation are unpreserved for appellate review because the defense counsel either failed to make specific and timely objections, or failed to seek curative instructions or move for a mistrial on the grounds now raised on appeal (see CPL 470.05[2];  People v. Love, 37 A.D.3d 618, 830 N.Y.S.2d 723, 2007 WL 465933 [2d Dept., Feb. 13, 2007] ).   In any event, to the extent that any remarks were improper, any error was harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Love, supra ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant failed to preserve for appellate review his remaining contention regarding the court's failure to sever the counts for possessing a sexual performance by a child and, in any event, that contention is without merit.