Supreme Court, Appellate Division, Second Department, New York.
The PEOPLE, etc., respondent, v. Marvin Geovany MEJIA, appellant.
Decided: April 18, 2018
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
Robert Schuster, Mt. Kisco, N.Y. (John R. Lewis of counsel), for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Steven A. Bender of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), rendered November 29, 2016, convicting him of rape in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged with rape in the first degree (Penal Law § 130.35 ), rape in the third degree (Penal Law § 130.25 ), and two counts of sexual abuse in the first degree (Penal Law § 130.65 ).
During the charge conference, defense counsel requested that the Supreme Court not submit the rape in the third degree count for the jury's consideration. The court denied the request. The defendant was acquitted of rape in the first degree and both counts of sexual abuse in the third degree, but was convicted of rape in the third degree.
The defendant contends that the Supreme Court erred in submitting the count of rape in the third degree for the jury's consideration. Rape in the third degree is a noninclusory concurrent count of rape in the first degree (see CPL 300.50; People v. Evans, 79 A.D.3d 454, 455, 913 N.Y.S.2d 41). When offenses are noninclusory, the submission of the less serious count is not mandatory; rather it is a matter for the trial court's discretion whether to dismiss the count (see CPL 300.40[a]; People v. Leon, 7 N.Y.3d 109, 113, 817 N.Y.S.2d 619, 850 N.E.2d 666; People v. Boyd, 152 A.D.3d 53, 56, 55 N.Y.S.3d 236, affd 31 N.Y.3d 953, 73 N.Y.S.3d 500, 96 N.E.3d 765, 2018 N.Y. Slip Op. 02120, 2018 WL 1473604 ; People v. Pitterson, 45 A.D.3d 308, 310, 845 N.Y.S.2d 255). “In exercising its discretion, the court ha[s] to weigh competing possibilities: Would the submission of the [less serious] count help the jury arrive at a fair verdict, or would it simply provide a distraction or an opportunity to split the difference?” (People v. Leon, 7 N.Y.3d at 114, 817 N.Y.S.2d 619, 850 N.E.2d 666). Here, the court's submission to the jury of the count of rape in third degree was not an improvident exercise of discretion (see People v. Urbina, 99 A.D.3d 821, 822, 951 N.Y.S.2d 753). Moreover, even if the verdict was motivated by leniency, this is not a ground for reversal, as the verdict was not repugnant as a matter of law (see People v. Rayam, 94 N.Y.2d 557, 562, 708 N.Y.S.2d 37, 729 N.E.2d 694; People v. Barrow, 103 A.D.3d 745, 746, 959 N.Y.S.2d 284; People v. Donovan, 58 A.D.3d 640, 641, 871 N.Y.S.2d 349; People v. Vitta, 220 A.D.2d 468, 469, 631 N.Y.S.2d 917).
Additionally, the defendant was not deprived of a fair trial by the testimony of a prosecution witness which may have created an inference that he had a criminal record. The Supreme Court's actions in striking the objectionable testimony from the record and issuing a curative instruction eliminated any prejudice to the defendant (see People v. Schlackman, 153 A.D.3d 641, 642, 57 N.Y.S.3d 409; People v. Onikosi, 140 A.D.3d 516, 517–518, 34 N.Y.S.3d 18; People v. Spears, 140 A.D.3d 1629, 1630, 32 N.Y.S.3d 771; People v. Arena, 70 A.D.3d 1044, 1046–1047, 895 N.Y.S.2d 514; People v. Whitely, 41 A.D.3d 622, 623, 837 N.Y.S.2d 345; People v. Carter, 40 A.D.3d 1310, 1313, 838 N.Y.S.2d 192). The court did not err in declining defense counsel's request to issue further instructions during the charge regarding this testimony.
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