PEOPLE v. COLON (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered July 20, 2006, convicting him of rape in the first degree, burglary in the first degree, sexual abuse in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant was not deprived of his statutory right to a speedy trial.   The court properly excluded from the time chargeable to the People the period in which the court was considering the People's motion to obtain blood samples from the defendant (see CPL 30.30[4][a] ).   Nor was the defendant deprived of his constitutional right to a speedy trial (see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303).

 The defendant's contention that the court improperly admitted into evidence photographs of a knife recovered from his apartment, which had been accidently destroyed, is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, his argument is without merit.   While the prosecution is obligated to preserve discoverable evidence for inspection by the defense, the imposition of an appropriate sanction for failing to preserve such evidence is a matter within the sound discretion of the trial court (see People v. Kelly, 62 N.Y.2d 516, 478 N.Y.S.2d 834, 467 N.E.2d 498;  People v. Cannonier, 236 A.D.2d 619, 654 N.Y.S.2d 388).   The People's failure to preserve the knife resulted in no genuine prejudice to the defendant (see People v. Cannonier, 236 A.D.2d 619, 654 N.Y.S.2d 388;  People v. Bailey, 215 A.D.2d 676, 628 N.Y.S.2d 291).

 The defendant's contention that he was denied the effective assistance of counsel is without merit.  “[W]hen reviewing claims of ineffective assistance of counsel, care must be taken to avoid confusing true ineffectiveness with mere losing tactics.   The performance of counsel must be viewed without the benefit of hindsight, and if counsel provided meaningful representation in the context of the evidence, the law, and the circumstances of the particular case, the constitutional requirement will have been met” (People v. Butler, 143 A.D.2d 140, 140-141, 531 N.Y.S.2d 596;  see People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Contrary to the defendant's contention, defense counsel delivered coherent opening and closing statements consistent with the defense theory, and effectively cross-examined the prosecution's witnesses in accordance with that theory.   Under the circumstances, the defendant was afforded meaningful representation (see People v. Satterfield, 66 N.Y.2d at 799-800, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Cesario, 157 A.D.2d 795, 796, 550 N.Y.S.2d 395).

 The defendant contends that the Supreme Court should have precluded the testimony of a midwife called by the People because she was unqualified to render an expert opinion.   However, given the education and employment history of the witness, who had been a midwife for 27 years and had received training in sexual assault forensic examination, the trial court providently exercised its discretion in permitting her to provide expert testimony (see Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532;  People v. Lewis, 16 A.D.3d 173, 790 N.Y.S.2d 132;  People v. Morehouse, 5 A.D.3d 925, 928, 774 N.Y.S.2d 100).

 The sentence imposed was not excessive.   Contrary to the defendant's contention, the trial court legally imposed consecutive sentences for his convictions of rape in the first degree and sexual abuse in the first degree, as each count involved a separate sexual act constituting a distinct offense (see People v. Gersten, 280 A.D.2d 487, 487-488, 719 N.Y.S.2d 900;  People v. White, 261 A.D.2d 653, 657-658, 690 N.Y.S.2d 300;  People v. Rivera, 186 A.D.2d 594, 596, 588 N.Y.S.2d 391;  Penal Law § 70.25).