PEOPLE v. NELSON (2009)

Appeal from a judgment of the County Court of Chenango County (Sullivan, J.), rendered November 17, 2003, upon a verdict convicting defendant of the crimes of sodomy in the first degree (four counts), sexual abuse in the second degree (three counts) and endangering the welfare of a child (two counts).

Following a jury trial, defendant was convicted of four counts of sodomy in the first degree, three counts of sexual abuse in the second degree and two counts of endangering the welfare of a child.   The charges stemmed from his inappropriate sexual contact with a then 12-year-old boy between August 2002 and September 2002.   Sentenced as a second felony offender to consecutive prison terms of 25 years on each of the four sodomy counts, to run concurrently with the one-year sentences imposed on each of the remaining charges, he now appeals.

 We reject defendant's contention that his statutory right to a speedy trial was violated.   Where a defendant is charged with a felony, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a];  People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ).   A criminal action is commenced when the first accusatory instrument is filed, and “includes the filing of all further accusatory instruments directly derived from the initial one” (CPL 1.20[16][b];  see People v. Sinistaj, 67 N.Y.2d 236, 239, 501 N.Y.S.2d 793, 492 N.E.2d 1209 [1986] ).   Thus, subsequent accusatory instruments that are “ ‘directly derived’ ” from the first instrument will relate back to the first instrument for purposes of assessing the People's compliance with their speedy trial obligations (People v. Sinistaj, 67 N.Y.2d at 241 n. 4, 501 N.Y.S.2d 793, 492 N.E.2d 1209;  see People v. Lomax, 50 N.Y.2d 351, 356, 428 N.Y.S.2d 937, 406 N.E.2d 793 [1980];  People ex rel. Greenstein v. Sheriff of Schenectady County, 220 A.D.2d 190, 193, 645 N.Y.S.2d 339 [1996] ).

Here, a felony complaint was issued on October 1, 2002 charging defendant with three counts of sodomy in the first degree.   Defendant was subsequently charged by a superior court information with those same crimes and the People declared their readiness for trial in open court on March 31, 2003, within the six-month period permitted by CPL 30.30(1)(a) (see People v. Wilson, 86 N.Y.2d 753, 754, 631 N.Y.S.2d 127, 655 N.E.2d 168 [1995] ).   However, the People later presented charges to the grand jury that resulted in an indictment, filed May 14, 2003, charging defendant with those same three counts of sodomy in the first degree, as well as additional crimes.   Although the People's March 2003 announcement of readiness for trial was ineffective as to the new crimes subsequently charged in the indictment (see People v. Johnson, 112 A.D.2d 1, 1, 490 N.Y.S.2d 399 [1985], lv. denied 66 N.Y.2d 764, 497 N.Y.S.2d 1038, 488 N.E.2d 124 [1985];  People v. Cruz, 111 A.D.2d 725, 726, 491 N.Y.S.2d 330 [1985], lvs. denied 66 N.Y.2d 614, 494 N.Y.S.2d 1037, 485 N.E.2d 241 [1985], 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1985];  see generally People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985] ), it satisfied their obligations with respect to the three counts of sodomy in the first degree contained in the indictment, since those counts were “ ‘directly derived’ ” from the felony complaint (People v. Sinistaj, 67 N.Y.2d at 241 n. 4, 501 N.Y.S.2d 793, 492 N.E.2d 1209;  see People v. Berry, 5 A.D.3d 866, 867-868, 773 N.Y.S.2d 181 [2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004];  People v. Morales, 309 A.D.2d 1065, 1066, 765 N.Y.S.2d 918, 765 N.Y.S.2d 918 [2003], lv. denied 1 N.Y.3d 576, 775 N.Y.S.2d 793, 807 N.E.2d 906 [2003];  People v. Stone, 265 A.D.2d 891, 892, 697 N.Y.S.2d 212 [1999], lv. denied 94 N.Y.2d 907, 707 N.Y.S.2d 392, 728 N.E.2d 991 [2000] ).   As no significant postreadiness delays chargeable to the People were established (see People v. Carter, 91 N.Y.2d 795, 799, 676 N.Y.S.2d 523, 699 N.E.2d 35 [1998] ), defendant was not deprived of his statutory right to a speedy trial on the three sodomy counts.

To the extent that “the felony complaint and subsequently filed indictment allege[d] separate and distinct criminal transactions, the speedy trial time clock commence[d] to run upon the filing of the indictment with respect to the new charges” (People v. Dearstyne, 230 A.D.2d 953, 955, 646 N.Y.S.2d 1000 [1996], lvs. denied 89 N.Y.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295 [1996], 89 N.Y.2d 1034, 659 N.Y.S.2d 864, 681 N.E.2d 1311 [1997];  see People v. Fehr, 45 A.D.3d 920, 922, 844 N.Y.S.2d 478 [2007], lv. denied 10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261 [2008];  People ex rel. Greenstein v. Sheriff of Schenectady County, 220 A.D.2d at 193, 645 N.Y.S.2d 339;  People v. Stone, 265 A.D.2d at 892-893, 697 N.Y.S.2d 212).   Since the People filed a statement of readiness on June 2, 2003, well within six months of the May 14, 2003 filing date of the indictment, the People also complied with the requirements of CPL 30.30(1)(a) as to these new counts.

 Defendant next asserts that he was deprived of a fair trial by comments made by the prosecutor during summation.  “Reversal of a conviction for prosecutorial misconduct is warranted only where a defendant has suffered substantial prejudice such that he [or she] was deprived of due process of law” (People v. McCombs, 18 A.D.3d 888, 890, 795 N.Y.S.2d 108 [2005] [citations omitted];  see People v. Ciborowski, 302 A.D.2d 620, 622-623, 755 N.Y.S.2d 113 [2003], lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481 [2003] ).   We agree that, at times, the prosecutor made improper remarks that denigrated both defense counsel and the defense (see People v. Wlasiuk, 32 A.D.3d 674, 681, 821 N.Y.S.2d 285 [2006], lv. dismissed 7 N.Y.3d 871, 824 N.Y.S.2d 616, 857 N.E.2d 1147 [2006];  People v. LaPorte, 306 A.D.2d 93, 95, 762 N.Y.S.2d 55 [2003];  People v. Kent, 125 A.D.2d 590, 591, 509 N.Y.S.2d 841 [1986] ).   Furthermore, the prosecutor inappropriately attempted to appeal to the sympathy of the jury by asking the jury to “fight for [the victim]” during deliberations (see People v. Bhupsingh, 297 A.D.2d 386, 388, 746 N.Y.S.2d 490 [2002];  People v. Andre, 185 A.D.2d 276, 278, 585 N.Y.S.2d 792 [1992] ).   Although the summation was not free from error, we find that the unwarranted and improper comments, even when considered cumulatively, were not so substantially prejudicial as to deprive defendant of a fair trial, particularly given the strength of the People's case and the overwhelming proof of defendant's guilt (see People v. Wilson, 61 A.D.3d 1269, 1272, 877 N.Y.S.2d 761 [2009];  People v. Thornton, 4 A.D.3d 561, 563, 771 N.Y.S.2d 597 [2004], lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479 [2004];  People v. Cody, 260 A.D.2d 718, 722, 689 N.Y.S.2d 245 [1999], lv. denied 93 N.Y.2d 1002, 695 N.Y.S.2d 747, 717 N.E.2d 1084 [1999];  People v. Hamilton, 227 A.D.2d 669, 672, 641 N.Y.S.2d 746 [1996], lv. denied 88 N.Y.2d 1068, 651 N.Y.S.2d 412, 674 N.E.2d 342 [1996] ).

To that end, the victim provided detailed and descriptive testimony regarding the sexual acts that defendant subjected him to on three distinct occasions between August 2002 and September 2002.   Moreover, defendant's brother testified that, in early September 2002, defendant revealed that he had developed a “relationship” with the victim and that he had sex with the victim.   Defendant's brother testified further that, although he insisted that defendant cease the “relationship,” defendant continued to see the victim and soon thereafter admitted to again engaging in sexual conduct with the victim.   Likewise, defendant's sister-in-law testified to a phone call she received from defendant in August or September 2002 wherein he confessed to having sexual relations with the victim, and the record reveals that defendant also admitted the sexual conduct to his pastor.   Thus, in light of the uncontradicted and overwhelming evidence of defendant's guilt, we simply cannot conclude that there was a reasonable possibility that the jury would have acquitted defendant had the improper comments not been made (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975];  People v. Dawkins, 240 A.D.2d 962, 963, 659 N.Y.S.2d 536 [1997], lv. denied 90 N.Y.2d 903, 663 N.Y.S.2d 515, 686 N.E.2d 227 [1997];  People v. Cunningham, 222 A.D.2d 727, 731, 635 N.Y.S.2d 304 [1995], lv. denied 87 N.Y.2d 1018, 644 N.Y.S.2d 152, 666 N.E.2d 1066 [1996];  People v. Perez, 176 A.D.2d 165, 166, 574 N.Y.S.2d 47 [1991], lv. denied 79 N.Y.2d 862, 580 N.Y.S.2d 734, 588 N.E.2d 769 [1992];  compare People v. De Vito, 21 A.D.3d 696, 699-701, 800 N.Y.S.2d 250 [2005];  People v. Gorghan, 13 A.D.3d 908, 909-911, 787 N.Y.S.2d 178 [2004], lv. dismissed 4 N.Y.3d 798, 795 N.Y.S.2d 174, 828 N.E.2d 90 [2005];  People v. Levandowski, 8 A.D.3d 898, 900-901, 780 N.Y.S.2d 384 [2004];  People v. Russell, 307 A.D.2d 385, 386-387, 761 N.Y.S.2d 400 [2003] ).   We emphasize that, had the People's case not been so strong, the extent of the prosecutor's comments may well have led to a different result here.

 Finally, defendant's sentence of maximum consecutive terms-reduced to an aggregate prison term of 50 years by operation of law (see Penal Law § 70.30[1][e][vi] )-was not harsh or excessive under the circumstances.   Although defendant was offered a prison sentence of 18 years during plea negotiations, “ ‘[t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial’ ” (People v. Chilson, 285 A.D.2d 733, 735, 728 N.Y.S.2d 550 [2001], lvs. denied 97 N.Y.2d 640, 735 N.Y.S.2d 497, 761 N.E.2d 2 [2001], 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358 [2002], quoting People v. Simon, 180 A.D.2d 866, 867, 580 N.Y.S.2d 493 [1992], lv. denied 80 N.Y.2d 838, 587 N.Y.S.2d 922, 923, 600 N.E.2d 649, 650 [1992];  see People v. Saunders, 309 A.D.2d 1063, 1065, 766 N.Y.S.2d 386 [2003] ).   Rather, County Court's sentence was based on, among other legitimate considerations, defendant's prior conviction for similar sexual conduct towards a minor boy in Ohio, his conceded inability to control his sexual urges, and the abhorrent nature of his sexual exploitation of this young victim on multiple occasions (see People v. Merck, 63 A.D.3d 1374, 1376, 882 N.Y.S.2d 337 [2009];  People v. Chappelle, 14 A.D.3d 728, 729, 787 N.Y.S.2d 501 [2005], lv. denied 5 N.Y.3d 786, 801 N.Y.S.2d 807, 835 N.E.2d 667 [2005] ).   Finding neither an abuse of discretion nor the existence of any extraordinary circumstances warranting modification (see People v. Dunton, 30 A.D.3d 828, 830, 817 N.Y.S.2d 442 [2006], lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 777, 857 N.E.2d 72 [2006];  People v. Dalton, 27 A.D.3d 779, 783, 811 N.Y.S.2d 153 [2006], lvs. denied 7 N.Y.3d 754, 819 N.Y.S.2d 880, 853 N.E.2d 251, 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 [2006] ), we decline to disturb the sentence.

Defendant's remaining contentions are unpreserved for our review.

ORDERED that the judgment is affirmed.

PETERS, J.

CARDONA, P.J., KANE, STEIN and GARRY, JJ., concur.