PEOPLE v. MILLER (2010)

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J.) rendered November 13, 2007 convicting him of rape in the first degree (two counts), criminal sexual act in the first degree, burglary in the first degree, and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly denied his motion for a mistrial based on a prosecution witness's brief mention of the defendant's possible past criminal activity. Any possible prejudice to the defendant was alleviated when the Supreme Court sustained the defendant's objection and offered to take further curative action (see People v. Young, 48 N.Y.2d 995, 996; cf. People v. Blasich, 73 N.Y.2d 673, 682; People v. Santiago, 52 N.Y.2d 865, 866; People v. Ragsdale, 68 AD3d 897, 898). If the defendant was of the view that the remedy provided was insufficient, he should have sought further or more complete curative instructions (see People v. Santiago, 52 N.Y.2d at 866). We disagree with the defendant's assertion that a mistrial was the only appropriate remedy (see People v. Young, 48 N.Y.2d at 996).

The defendant contends that he was deprived of a fair trial by the elicitation of evidence of the complainant's mental and physical condition after the rape and assault, and by statements of the prosecutor during summation. However, since the defendant did not object to the admissibility of the challenged evidence, any alleged error with respect thereto is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the elicited testimony was properly admitted to prove the elements of the crimes with which the defendant was charged (see People v. Jettoo, 205 A.D.2d 555; People v. Jones, 188 A.D.2d 364). Further, the remarks by the prosecutor in summation were fair comment on the evidence and constituted legitimate responses to defense counsel's summation (see People v. Halm, 81 N.Y.2d 819, 821; People v. Molinaro, 62 AD3d 724, 725; People v. Hill, 286 A.D.2d 777, 778; People v. Peterson, 186 A.D.2d 231, 232, affd 81 N.Y.2d 824; People v. Rawlings, 144 A.D.2d 500).

The defendant was not deprived of the effective assistance of counsel, as the record reveals that defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712; People v. Baldi, 54 N.Y.2d 137, 147).

Contrary to the defendant's contention, it was not illegal for the Supreme Court to make the sentence imposed on his conviction of burglary in the first degree to run consecutively to the sentences imposed on his convictions of rape in the first degree and criminal sexual act in the first degree (see Penal Law §§ 70.25[1], 130.35[1], 130.50[1], 140.30[2]; People v. Taveras, 12 NY3d 21, 25; People v. Laureano, 87 N.Y.2d 640, 643).