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

824
KA 10-01632
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LENNIE D. FRANKLINE, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LENNIE D. FRANKLINE, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered June 3, 2009. The judgment convicted
defendant, upon a jury verdict, of kidnapping in the first degree
(three counts), predatory sexual assault, criminal sexual act in the
first degree (four counts), assault in the second degree, abortion in
the second degree and aggravated harassment in the second degree (two
counts).

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, predatory sexual assault (Penal Law § 130.95
[1] [b]), three counts of kidnapping in the first degree (§ 135.25 [2]
[a], [c]), and four counts of criminal sexual act in the first degree
(§ 130.50 [1]), defendant contends that the verdict with respect to
the kidnapping counts is against the weight of the evidence because
the People failed to prove beyond a reasonable doubt that he
restrained the victim within the meaning of Penal Law § 135.00 (1).
We reject that contention. The victim testified at trial that
defendant, her ex-boyfriend, held her against her will in their
apartment in excess of two days, and that he repeatedly hit and kicked
her while her arms and legs were bound by wire. The victim further
testified that defendant then poured gasoline on her and threatened to
set her on fire if she did not have anal intercourse with him. She
fled from the apartment to safety more than 48 hours later, when
defendant left the apartment to obtain food. Although there were
periods during which the victim was not physically confined in the
apartment, the jury could reasonably have determined that she was
effectively restrained from leaving due to her fear of defendant and
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                                                         KA 10-01632

his threats of using deadly physical force against her and others if
she attempted to leave (see § 135.00 [1], [2]; see generally People v
Lotmore, 276 AD2d 901, 902, lv denied 96 NY2d 736). We note that the
victim’s testimony was amply corroborated by other evidence, including
photographs of her various injuries, and that the jury was entitled to
credit her testimony over that of defendant, wherein he maintained
that he did not restrain the victim in any way and that she consented
to the sexual activity (see People v Brink, 78 AD3d 1483, 1484, lv
denied 16 NY3d 742, 828). Thus, viewing the evidence in light of the
elements of the counts of kidnapping as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict
with respect to those counts is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant further contends that County Court’s Ventimiglia
ruling, which allowed the People in their direct case to present
evidence of subsequent crimes committed by defendant against the same
victim in Bronx County, effectively deprived him of his Fifth
Amendment rights with respect to the subsequent crimes. Defendant
failed to preserve that contention for our review (see CPL 470.05 [2])
and, in any event, that contention lacks merit. The court ruled that
the People were not allowed to cross-examine defendant concerning
those subsequent crimes in Bronx County in the event that he chose to
testify (see generally People v Betts, 70 NY2d 289, 291; People v
Sandoval, 34 NY2d 371), and evidence of those crimes was admissible
under People v Molineux (168 NY 264, 293-294; cf. People v Mack, 234
AD2d 565, 566, lv denied 89 NY2d 1096). Given the brutal and sadistic
nature of the crimes committed by defendant, and his prior criminal
record, we conclude that the sentence is not unduly harsh or severe.

     In his pro se supplemental brief, defendant contends that the
court erred in refusing to suppress evidence obtained by the police
from his apartment. According to defendant, the police obtained the
evidence during a search of the apartment to which the victim
consented, and she lacked actual or apparent authority to consent to
the search. We reject that contention. Although the victim was
residing at a friend’s house at the time of the search, she had
previously lived with defendant in the apartment and had paid the rent
for the month in which the search occurred. In addition, she retained
a key to the apartment and had left clothing there, and the utilities
were still in her name. Under the circumstances, the court properly
concluded that the victim had apparent authority to consent to the
search (see People v Adams, 53 NY2d 1, 8-10, rearg denied 54 NY2d 832,
cert denied 454 US 854; People v Fontaine, 27 AD3d 1144, 1145, lv
denied 6 NY3d 847; United States v Trzaska, 859 F2d 1118, 1120, cert
denied 493 US 839; see generally Illinois v Rodriguez, 497 US 177,
188-189).

     Defendant’s further contentions in his pro se supplemental brief
concerning the alleged legal insufficiency of the evidence are
unpreserved for our review (see People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678; People v Gray, 86 NY2d 10, 19), and we have
reviewed defendant’s remaining contentions therein and conclude that
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                                            KA 10-01632

none has merit.




Entered:   August 19, 2011         Patricia L. Morgan
                                   Clerk of the Court
