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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jason M. CORNELL, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, KEHOE, LAWTON, AND HAYES, JJ. Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua, for Plaintiff-Respondent.

 Defendant appeals from a judgment of Ontario County Court convicting him after a jury trial of two counts of rape in the first degree (Penal Law § 130.35[1] ).   The rapes occurred on different dates and with different victims.   Both rapes occurred in a motor vehicle that traveled from Ontario County to Monroe County.   One rape occurred in Ontario County, and from the testimony it appears that the second rape occurred in Monroe County.   By failing to move to dismiss the count of rape that occurred in Monroe County on the ground of improper venue or to request a jury charge on venue, defendant failed to preserve for our review (see People v. Pilgrim, 52 N.Y.2d 730, 732, 436 N.Y.S.2d 265, 417 N.E.2d 559;  People v. Chohan, 254 A.D.2d 124, 679 N.Y.S.2d 10, lv. denied 92 N.Y.2d 1030, 684 N.Y.S.2d 495, 707 N.E.2d 450) and waived (see People v. Greenberg, 89 N.Y.2d 553, 556, 656 N.Y.S.2d 192, 678 N.E.2d 878;  see generally People v. McLaughlin, 80 N.Y.2d 466, 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357) his present contentions that venue was not proper and that the court erred in its instructions to the jury (cf. People v. Ribowsky, 77 N.Y.2d 284, 292, 567 N.Y.S.2d 392, 568 N.E.2d 1197;  People v. Cullen, 50 N.Y.2d 168, 172, 428 N.Y.S.2d 456, 405 N.E.2d 1021, rearg. denied 50 N.Y.2d 1059, 431 N.Y.S.2d 1031, 410 N.E.2d 760).   Defendant further contends that it was a Brady violation and prosecutorial misconduct for the prosecutor not to disclose in a timely fashion that one of the rapes occurred in Monroe County.   Neither the alleged Brady violation (see People v. Harris, 1 A.D.3d 881, 882, 767 N.Y.S.2d 725, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919;  People v. Kelly, 309 A.D.2d 1149, 1151, 765 N.Y.S.2d 115, lv. denied 1 N.Y.3d 575, 775 N.Y.S.2d 791, 807 N.E.2d 904) nor the prosecutorial misconduct contention (see People v. Hendricks, 2 A.D.3d 1450, 1451, 769 N.Y.S.2d 432, lv. denied 2 N.Y.3d 762, 778 N.Y.S.2d 781, 811 N.E.2d 43) has been preserved for our review.   In any event, those contentions are without merit.   “[E]vidence is not deemed to be Brady material when the defendant has knowledge of it or is in possession of it” (People v. Ahmed, 244 A.D.2d 415, 415, 664 N.Y.S.2d 317, lv. denied 91 N.Y.2d 888, 669 N.Y.S.2d 2, 691 N.E.2d 1028).   Here, defendant had knowledge of where both rapes were alleged to have occurred, and thus the evidence was not Brady material.

 Contrary to the further contention of defendant, the court did not err in denying his motion to sever.   Under the circumstances of this case, the offenses were joinable under CPL 200.20(2)(b) because evidence of the rape against one victim would be material and admissible as evidence-in-chief upon the trial of the rape against the other victim, and, once the offenses were properly joined, the court lacked the statutory authority to sever (see People v. Fontanez, 278 A.D.2d 933, 934-935, 718 N.Y.S.2d 541, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119).  “In any event, the offenses also were ‘the same or similar in law’ (CPL 200.20[2][c] ), and defendant failed to show good cause for severance” (Fontanez, 278 A.D.2d at 935, 718 N.Y.S.2d 541).   Defendant received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the sentence is not unduly harsh or severe.   We have reviewed the remaining contention of defendant and conclude that it is without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.


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