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

176
KA 06-01618
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD HURLBERT, JR., DEFENDANT-APPELLANT.


BETZJITOMIR & BAXTER, LLP, BATH (SUSAN BETZJITOMIR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JASON L. COOK, DISTRICT ATTORNEY, PENN YAN (WENDY EVANS LEHMANN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (Dennis F.
Bender, A.J.), rendered March 16, 2006. The judgment convicted
defendant, upon a jury verdict, of kidnapping in the first degree (two
counts), rape in the first degree (five counts), criminal sexual act
in the first degree (two counts), criminal possession of a weapon in
the third degree (four counts) and criminal possession of a weapon in
the fourth degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of, inter alia, two counts of kidnapping in the
first degree (Penal Law § 135.25 [2] [a]), five counts of rape in the
first degree (§ 130.35 [1]), two counts of criminal sexual act in the
first degree (§ 130.50) and criminal possession of a weapon in the
third degree (§ 265.02 [1]) in connection with acts committed by
defendant against his girlfriend over a five-day period. Contrary to
defendant’s contention, he was not denied effective assistance of
counsel based on defense counsel’s failure to assert a defense of
mental disease or defect (see generally People v Baldi, 54 NY2d 137,
147). Although defendant told the victim that he wanted to kill
himself, the record does not support the defense that, “as a result of
mental disease or defect, defendant lacked substantial capacity to
know or appreciate either . . . [t]he nature and consequences of [his]
conduct[] or . . . [t]hat the conduct was wrong” (§ 40.15). Indeed,
the testimony of the victim, which was corroborated by physical
evidence, and that of defendant, belie his contention that defense
counsel should have asserted that defense.

     We reject defendant’s further contention that County Court erred
in permitting defense counsel to represent defendant after the court
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                                                         KA 06-01618

discovered that defense counsel had previously represented a
prosecution witness who waived her attorney-client privilege for
purposes of cross-examination. Although the court did not inquire of
defendant whether he understood the risks that may be involved with
respect to the potential conflict (see generally People v McDonald, 68
NY2d 1, 8, rearg dismissed 69 NY2d 724; People v Gomberg, 38 NY2d 307,
313-314), the failure to make such an inquiry does not constitute
reversible error because defendant has not established that the
potential conflict of interest bore “a substantial relation to the
conduct of the defense” (People v Harris, 99 NY2d 202, 211 [internal
quotation marks omitted]). Indeed, defense counsel vigorously cross-
examined that witness, and his questions included information
regarding the conviction with respect to which he represented her.

     Contrary to defendant’s contention, the People laid a proper
foundation for the admission in evidence of tape-recorded telephone
conversations between defendant and the victim and the transcript of
those recordings. The victim testified that she made the tapes on a
microcassette recorder, that the tapes had not been altered and that
the recordings constituted an accurate reproduction of the
conversations she had with defendant (see People v Ely, 68 NY2d 520,
527; People v Williams, 55 AD3d 1398, lv denied 11 NY3d 901). In
addition, the court properly determined that the probative value of
the tapes outweighed the potential for prejudice inasmuch as they were
relevant with respect to the element of forcible compulsion in the
counts charging rape in the first degree and criminal sexual act in
the first degree (Penal Law § 130.50 [1]; see generally People v Cook,
251 AD2d 1033, affd 93 NY2d 840).

     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
reject defendant’s further contention that the verdict is against the
weight of the evidence. The victim and defendant gave differing
accounts of the events that took place over the relevant time period.
The victim’s testimony was corroborated by physical evidence,
including handcuffs on which the victim’s DNA was found and the rope
and tape that defendant used to restrain her, and by the description
of the victim’s demeanor by witnesses who observed defendant and the
victim during the time period in question. The jury was entitled to
credit the victim’s testimony, and we see no reason to disturb its
determination (see generally People v Bleakley, 69 NY2d 490, 495).

     Contrary to defendant’s contention, his sentence, the aggregate
maximum term of which is 105 years (see Penal Law § 70.30 [1] [d]
[i]), is not illegal. “[W]here[, as here,] the crimes are committed
through separate and distinct acts, even though part of a single
transaction, consecutive sentences are possible regardless of whether
the statutory elements of the offenses overlap” (People v Salcedo, 92
NY2d 1019, 1021). The court imposed consecutive determinate terms of
imprisonment of 15 years on the rape and criminal sexual act counts,
which run concurrently to the indeterminate terms of imprisonment
imposed on the kidnapping counts (see generally People v Ramirez, 89
NY2d 444, 451). The court properly ordered the indeterminate terms of
imprisonment imposed on the weapons counts to run concurrently with
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                                                         KA 06-01618

each other and the terms imposed on the kidnapping counts (see
generally id.), but consecutively to the terms imposed on the rape and
criminal sexual act counts (see generally Salcedo, 92 NY2d at 1021).
Because defendant has been convicted of class A felonies, the sentence
is not eligible for the limiting provisions contained in Penal Law §
70.30 (1) (e) (vii) (A) and we decline to exercise our discretion to
reduce the sentence as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [b]). We have reviewed defendant’s
remaining contentions and conclude that they are without merit.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
