PEOPLE v. MYERS (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered March 19, 2004, convicting him of rape in the first degree (two counts), sodomy in the first degree (three counts), and sexual abuse in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim that the Supreme Court erred in failing to instruct the jury that it had to separately consider the charges and render separate verdicts is not preserved for appellate review (see CPL § 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the claim is without merit, as the Supreme Court properly charged the jury as to each count and the verdict sheet was noted accordingly (see People v. Johnson, 87 N.Y.2d 357, 360, 639 N.Y.S.2d 776, 662 N.E.2d 1066).   Furthermore, a review of the record and the verdicts returned establishes that the jury considered each charge separately (see People v. Santos, 202 A.D.2d 258, 608 N.Y.S.2d 645;  People v. Hatcher, 162 A.D.2d 148, 149, 556 N.Y.S.2d 569;  People v. Johnson, 130 A.D.2d 804, 514 N.Y.S.2d 830).

The defendant's claim that his adjudication as a persistent violent felony offender violated his right to a jury trial is unpreserved for appellate review (see People v. Highsmith, 21 A.D.3d 1037, 801 N.Y.S.2d 355;  People v. Rice, 285 A.D.2d 617, 728 N.Y.S.2d 376).   In any event, as the defendant's sentence was enhanced solely based upon his recidivism (see Penal Law § 70.08[1][a] ), he was not entitled to a jury trial to determine the facts of his prior felony convictions (see People v. Horn, 7 A.D.3d 638, 775 N.Y.S.2d 898;  People v. Telesford, 2 A.D.3d 757, 758, 770 N.Y.S.2d 118).

The defendant's contention raised in his supplemental pro se brief that his due process rights were violated by the People's preindictment and postindictment delay is unpreserved for appellate review (see People v. Champelle, 144 A.D.2d 378, 534 N.Y.S.2d 866).   In any event, the contention is without merit (see People v. Brown, 262 A.D.2d 419, 691 N.Y.S.2d 178;  People v. Rosado, 166 A.D.2d 544, 560 N.Y.S.2d 825).