PEOPLE v. SAMUELS

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

The PEOPLE, etc., Respondent, v. Craig SAMUELS, Appellant.

Decided: March 31, 2003

SONDRA MILLER, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, and BARRY A. COZIER, JJ. Malvina Nathanson, New York, NY, for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.

Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Marrus, J.), rendered March 8, 2001, convicting him of rape in the first degree under Indictment No. 8373/99, upon a jury verdict, and (2) a judgment of the same court, rendered March 19, 2001, convicting him of rape in the first degree (three counts), sodomy in the first degree (three counts), sexual abuse in the first degree (seven counts), and unlawful imprisonment in the first degree, under Indictment No. 3437/00, upon his plea of guilty, and imposing sentences.   Justice Goldstein has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c] ).

ORDERED that the judgments are affirmed.

The defendant's contention that the evidence of rape in the first degree under Indictment No. 8373/99 was legally insufficient is unpreserved for appellate review since the defendant merely made a general motion for a trial order of dismissal at the end of his case as to that count (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   In any event, viewing the evidence in the light most favorable to the prosecution (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 necessary elements of rape in the first degree beyond a reasonable doubt (see Penal Law § 130.35[1] ).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5] ).

The defendant's contention that he was entitled to an adverse inference charge with respect to the failure of the prosecution to produce a handwritten police aided report is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, the failure to produce that report did not prejudice the defendant, and therefore no such charge was warranted (see People v. Herrera, 285 A.D.2d 613, 728 N.Y.S.2d 745).   Additionally there is no reasonable possibility that the nondisclosure materially contributed to the results of the trial (see CPL 240.75;  People v. Delosanto, 300 A.D.2d 408, 751 N.Y.S.2d 538, see also People v. Sorbello, 285 A.D.2d 88, 729 N.Y.S.2d 747).

The defendant's remaining contentions are without merit.

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