PEOPLE v. JIAN HONG LIN (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Finnegan, J.), rendered March 11, 1997, convicting him of kidnapping in the first degree (three counts), rape in the first degree (12 counts), sodomy in the first degree, sexual abuse in the first degree (two counts), assault in the second degree, attempted grand larceny in the second degree, grand larceny in the fourth degree, and criminal possession of computer related material, upon a jury verdict, and sentencing him to concurrent indeterminate terms of 25 years to life imprisonment on each conviction of kidnapping in the first degree, 6 to 12 years imprisonment on 11 of the convictions of rape in the first degree, 2 to 4 years imprisonment on each conviction of sexual abuse in the first degree, and 1 to 3 years imprisonment on the convictions of attempted grand larceny in the second degree, grand larceny in the fourth degree, and criminal possession of computer related material, and indeterminate terms of 12 1/212 to 25 years imprisonment on the conviction of rape in the first degree under the fourth count of the indictment, 6 to 12 years imprisonment on the conviction of sodomy in the first degree, and 3 1/212 to 7 years imprisonment on the conviction of assault in the second degree, to run consecutively with each other and the other sentences imposed.

ORDERED that the judgment is modified, on the law, by providing that the term of imprisonment imposed on the conviction of assault in the second degree shall run concurrently with the terms of imprisonment imposed on the convictions of kidnapping in the first degree;  as so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the People (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.

 The defendant contends that the court erred when it did not ask the jurors whether they had engaged in premature deliberation.   Before summations, the court received a request from the jury to define a slang term used in a witness's testimony.   There was no evidence of prior jury discussions or discussions relating to anything other than the request to define the word in question.   The single question involved neither a “sifting of facts” nor a consideration of “outside influences” (People v. Horney, 112 A.D.2d 841, 843, 493 N.Y.S.2d 130).  Further, the court warned the jury several times to keep an open mind, and the jury is presumed to have followed these instructions (see, People v. Davis, 58 N.Y.2d 1102, 462 N.Y.S.2d 816, 449 N.E.2d 710).

 The defendant's convictions of assault in the second degree and kidnapping in the first degree were based on offenses committed through a single act.   Thus, the Supreme Court should have made the term of imprisonment imposed on the conviction of assault in the second degree run concurrently with the terms of imprisonment imposed on the convictions of kidnapping in the first degree (see, Penal Law § 70.25[2];  People v. Ahedo, 229 A.D.2d 588, 646 N.Y.S.2d 520).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.