        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

498
KA 09-02475
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DANIEL L. ROSS, ALSO KNOWN AS JOHN DOE,
DEFENDANT-APPELLANT.


LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT-APPELLANT.

DANIEL L. ROSS, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered August 20, 2009. The judgment
convicted defendant, upon a jury verdict, of rape in the first degree
(two counts), criminal sexual act in the first degree (two counts) and
assault in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of rape in the first degree (Penal
Law § 130.35 [1]), two counts of criminal sexual act in the first
degree (§ 130.50 [1]), and assault in the second degree (§ 120.05
[2]). The conviction arises out of the forcible rape of the 48-year-
old victim by defendant and the codefendant, which culminated in the
victim being stabbed three times and left for dead.

     We reject defendant’s contention in his main brief that the
conviction is not supported by legally sufficient evidence inasmuch as
his conviction is based solely on DNA evidence obtained from a readily
moveable object, i.e., a condom left at the scene (see People v
Person, 74 AD3d 1239, 1240-1241, lv denied 17 NY3d 799). The DNA
sample matching defendant’s DNA was collected from that condom, and
the victim’s DNA also matched a sample taken from the condom.
Moreover, the victim credibly testified that she was raped by two
attackers, one of whom matched defendant’s description, and testimony
from police officers supported the conclusion that the condom had been
recently left at the scene (see People v Gibson, 74 AD3d 1700, 1703,
affd 17 NY3d 757; People v Dearmus, 48 AD3d 1226, 1228, lv denied 10
NY3d 839; see also People v Rush, 242 AD2d 108, 110, lv denied 92 NY2d
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                                                         KA 09-02475

860, reconsideration denied 92 NY2d 905).

     Defendant’s further contention in his pro se supplemental brief
that the conviction otherwise is not supported by legally sufficient
evidence is not preserved for our review (see generally People v Gray,
86 NY2d 10, 19), and we decline to exercise our power to address it as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).

     Contrary to defendant’s contention, the indictment is not
multiplicitous. He was charged in count one with raping the victim as
a principal and, in count two, for acting as an accomplice in the
codefendant’s rape of the victim. Those are distinct criminal acts,
and the People therefore properly charged them as separate counts (see
generally People v Smith, 27 AD3d 242, 243-244, lv denied 7 NY3d 763;
People v Johnson, 289 AD2d 1008, 1009, lv denied 97 NY2d 756).
Contrary to defendant’s further contention, the indictment is not
duplicitous inasmuch as there was no evidence adduced at trial that he
had committed more than one rape or criminal sexual act in his
capacity as a principal or as an accomplice (see People v Keindl, 68
NY2d 410, 417-418, rearg denied 69 NY2d 823; see also CPL 200.30 [1];
People v Alonzo, 16 NY3d 267, 269). Furthermore, defendant’s
contention that he prevented the codefendant from continuing to stab
the victim is unsupported by the trial testimony and, in any event, is
irrelevant to the issue of his guilt of the crimes charged.

     Although defendant was subjected to custodial interrogation when
he gave his written statement to the police, it is undisputed that he
had previously waived his Miranda rights, and we therefore conclude
that his statement was voluntary (see generally People v Brooks, 26
AD3d 739, 740, lv denied 6 NY3d 846, reconsideration denied 7 NY3d
810). We further conclude that defendant’s subsequent refusal to sign
the written statement did not render invalid the knowing, intelligent
and voluntary nature of the statement (see People v Barksdale, 140
AD2d 531, 532, lv denied 72 NY2d 915). That conclusion is supported
by the testimony of one of the officers at the suppression hearing
that defendant had confirmed the accuracy of the statement after the
officer had read it back to him. Moreover, the statement was of an
exculpatory nature, and thus there is no basis for inferring that
defendant did not want his denials to the allegations against him to
be documented by the police.

     With respect to defendant’s contention in both his main and pro
se supplemental briefs that he was deprived of effective assistance of
counsel, we note as an initial matter that we use only the state
standard for ineffective assistance of counsel where a defendant
contends that he received ineffective assistance of counsel under both
the state and federal standards (see People v Stultz, 2 NY3d 277, 282,
rearg denied 3 NY3d 702; People v Henry, 95 NY2d 563, 565-566; cf.
People v McDonald, 1 NY3d 109, 114-115; see generally People v Baldi,
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                                                         KA 09-02475

54 NY2d 137, 147). Applying that standard, we conclude that
defendant’s contention is without merit. First, with respect to
defendant’s contention that defense counsel failed to call a DNA
expert to refute the People’s proof, we conclude that he failed to
“ ‘demonstrate the absence of strategic or other legitimate
explanations’ for counsel’s alleged shortcomings” (People v Benevento,
91 NY2d 708, 712). Indeed, the record suggests that an expert was, in
fact, consulted, and that defense counsel deliberately decided not to
call him to testify (see generally People v Sprosta, 49 AD3d 784, 785,
lv denied 10 NY3d 871).

      Second, contrary to defendant’s further contention, defense
counsel was not ineffective in failing to request a missing witness
charge, inasmuch as such request would have had little or no chance of
success (see People v Savinon, 100 NY2d 192, 197; see generally
Stultz, 2 NY3d at 287). Third, defendant’s assertion that defense
counsel failed to join in the codefendant’s discovery motion and
failed to advise defendant of the ramifications of rejecting the
People’s plea offer, involve matters outside the record on appeal, and
“the proper procedural vehicle for raising those contentions is a
motion pursuant to CPL 440.10” (People v Archie, 78 AD3d 1560, 1562,
lv denied 16 NY3d 856). Defendant’s remaining contentions concerning
ineffective assistance of counsel lack merit. The evidence, the law,
and the circumstances of this particular case, viewed in totality and
as of the time of the representation, reveal that defense counsel
provided meaningful representation (see generally Baldi, 54 NY2d at
147).

     Contrary to defendant’s contention, the sentence is not unduly
harsh and severe. Defendant failed to preserve his further contention
that, “in determining the sentence to be imposed, the court penalized
him for exercising his right to a jury trial, inasmuch as [he] failed
to raise that contention at sentencing” (People v Stubinger, 87 AD3d
1316, 1317, lv denied 18 NY3d 862). In any event, the “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” (id.). Furthermore, we
conclude that the court did not err in sentencing him to a consecutive
term of incarceration for the assault conviction (see People v Smith,
269 AD2d 778, 778, lv denied 95 NY2d 804).

     Finally, defendant’s contention that prosecutorial misconduct on
summation deprived him of a fair trial is unpreserved for our review
(see People v Klavoon, 207 AD2d 979, 980, lv denied 84 NY2d 908; see
generally People v Thompson, 59 AD3d 1115, 1117, lv denied 12 NY3d
860). In any event, the court sustained the codefendant’s objection
to one of the contested comments and provided a limiting instruction
in that regard (see People v Hawkes, 39 AD3d 1209, 1210, lv denied 9
NY3d 845), and the other remark constituted “a fair response to
defense counsel’s summation, and/or a fair comment on the evidence”
(People v Ward, 107 AD3d 1605, 1606, lv denied 21 NY3d 1078; see
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                                                       KA 09-02475

generally People v Halm, 81 NY2d 819, 821).




Entered:   June 20, 2014                      Frances E. Cafarell
                                              Clerk of the Court
