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

367
KA 11-00641
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONDULA LANE, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

RONDULA LANE, DEFENDANT-APPELLANT PRO SE.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered August 9, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the first
degree (four counts), burglary in the second degree and sexual abuse
in the first 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 four counts of criminal sexual act in the first
degree (Penal Law § 130.50 [1]), and one count each of burglary in the
second degree (§ 140.25 [2]) and sexual abuse in the first degree (§
130.65 [1]). We reject defendant’s contention that County Court erred
in refusing to suppress his statements to the police. Contrary to
defendant’s contention, the evidence introduced at the suppression
hearing fails to establish that he “ ‘was intoxicated to the degree of
mania, or of being unable to understand the meaning of his
statements’ ” (People v Schompert, 19 NY2d 300, 305, cert denied 389
US 874; see People v Lake, 45 AD3d 1409, 1410, lv denied 10 NY3d 767).
Defendant’s reliance on evidence introduced at trial in support of his
contention is misplaced. It is well settled that “evidence
subsequently admitted [at] trial cannot be used to support [or
undermine] the determination of the suppression court denying [a]
motion to suppress [an] oral confession; the propriety of the denial
must be judged on the evidence before the suppression court” (People v
Gonzalez, 55 NY2d 720, 721-722, rearg denied 55 NY2d 1038, cert denied
456 US 1010; see People v Carmona, 82 NY2d 603, 610 n 2).

     Defendant made only a general motion for a trial order of
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                                                         KA 11-00641

dismissal at the close of the People’s case, and thus failed to
preserve for our review his contention that the evidence is legally
insufficient to support the burglary conviction (see People v Gray, 86
NY2d 10, 19; People v Pollard, 70 AD3d 1403, 1404-1405, lv denied 14
NY3d 891). In any event, that contention is without merit. The
victim testified in detail concerning that crime, and other testimony,
including that of defendant, corroborated her testimony, thereby
satisfying “the proof and burden requirements for every element of the
crime charged” (People v Bleakley, 69 NY2d 490, 495). Furthermore,
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 contention that the verdict with respect to all counts is
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495). Even assuming, arguendo, that a different result would not have
been unreasonable, we conclude that the jury did not fail to give the
evidence the weight it should be accorded, and there is no basis upon
which to disturb the jury’s credibility determinations (see generally
id.).

     We reject defendant’s further contention that he was denied
effective assistance of counsel. “The constitutional requirement of
effective assistance of counsel will be satisfied [where, as here,]
‘the evidence, the law, and the circumstances of [the] particular
case, viewed in totality and as of the time of the representation,
reveal that the attorney provided meaningful representation’ ” (People
v Flores, 84 NY2d 184, 187). “[I]t is well settled that disagreement
over trial strategy is not a basis for a determination of ineffective
assistance of counsel” (People v Dombrowski, 94 AD3d 1416, 1417, lv
denied 19 NY3d 959; see People v Henry, 74 AD3d 1860, 1862, lv denied
15 NY3d 852; see generally People v Benevento, 91 NY2d 708, 712-714).
Here, “[t]he alleged instances of ineffective assistance concerning
defense counsel’s failure to make various objections [or certain
motions or requests] ‘are based largely on [defendant’s] hindsight
disagreements with defense counsel’s trial strategies, and defendant
failed to meet his burden of establishing the absence of any
legitimate explanations for those strategies’ ” (People v Douglas, 60
AD3d 1377, 1377, lv denied 12 NY3d 914; see People v Stepney, 93 AD3d
1297, 1298, lv denied 19 NY3d 968).

     Defendant failed to preserve for our review his contention in his
main and pro se supplemental briefs that he was deprived of a fair
trial by prosecutorial misconduct during opening and closing
statements because he failed to object to any of the alleged
improprieties (see People v Rumph, 93 AD3d 1346, 1347, lv denied 19
NY3d 967; see also People v Balls, 69 NY2d 641, 642). In any event,
assuming, arguendo, that the prosecutor’s comments were improper, we
conclude that they “did not cause such substantial prejudice to the
defendant that he has been denied due process of law” (People v
Stabell, 270 AD2d 894, 894, lv denied 95 NY2d 804 [internal quotation
marks omitted]; see People v Agostini, 84 AD3d 1716, 1716, lv denied
17 NY3d 857).

     Defendant failed to preserve for our review his further
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                                                         KA 11-00641

contention that he was deprived of a fair trial by the introduction of
certain evidence. Specifically, the record establishes that defendant
moved to preclude parts of a recording that the police made of his
statements on the ground that they contained evidence of uncharged
crimes and, although the court denied the motion, the court gave
prompt curative instructions to the jury at trial when the recording
was played. Defendant did not object to the instructions that were
given, nor did he object further or seek a mistrial, and he thus
failed to preserve for our review his contention that he was deprived
of a fair trial by the introduction of the evidence. “Under these
circumstances, the curative instructions must be deemed to have
corrected the error to the defendant’s satisfaction” (People v Heide,
84 NY2d 943, 944; see People v Adams, 90 AD3d 1508, 1509, lv denied 18
NY3d 954). We decline to exercise our power to review defendant’s
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     We reject defendant’s contention that the court erred in imposing
consecutive sentences on the counts of the indictment charging him
with sexual abuse and criminal sexual act. “[I]t is well settled that
consecutive sentences may be imposed where[, as here,] acts of deviate
sexual intercourse occur within a continuous sexual incident [inasmuch
as] the material elements are distinct and require different sexual
acts” (People v Lanfair, 18 AD3d 1032, 1033-1034, lv denied 5 NY3d
790; see People v Laureano, 87 NY2d 640, 643; People v Ramirez, 44
AD3d 442, 445, lv denied 9 NY3d 1008).

     Defendant failed to preserve for our review his contention in his
pro se supplemental brief that certain counts of the indictment are
facially duplicitous (see People v Becoats, 71 AD3d 1578, 1579, affd
17 NY3d 643, cert denied ___ US ___, 132 S Ct 1970). In any event,
that contention is without merit inasmuch as “[e]ach count of [the]
indictment . . . charge[s] one offense only” (CPL 200.30 [1]).
Furthermore, although defendant’s additional contention that the
indictment was rendered duplicitous by the trial testimony need not be
preserved for our review (see People v Filer, 97 AD3d 1095, 1096, lv
denied 19 NY3d 1025; People v Boykins, 85 AD3d 1554, 1555, lv denied
17 NY3d 814), that contention is also without merit. The victim’s
testimony and the court’s charge establish that different conduct is
alleged in each of the various counts (see People v Alonzo, 16 NY3d
267, 269), and that the incident was not a single uninterrupted crime
(cf. People v Snyder, 100 AD3d 1367, 1367). Defendant’s further
contention in his pro se supplemental brief concerning the sufficiency
of the evidence before the grand jury is not properly before us. It
“is well established that ‘[t]he validity of an order denying any
motion [to dismiss an indictment for legal insufficiency of the grand
jury evidence] is not reviewable upon an appeal from an ensuing
judgment of conviction based upon legally sufficient trial evidence’ ”
(People v Afrika, 79 AD3d 1678, 1679, lv denied 17 NY3d 791, quoting
CPL 210.30 [6]; see People v Smith, 4 NY3d 806, 808). Here, we
rejected defendant’s challenge to the legal sufficiency of the
evidence with respect to the burglary conviction, and defendant has
not challenged the legal sufficiency of the evidence with respect to
the remaining convictions (see Smith, 4 NY3d at 808).
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                                                         KA 11-00641

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contentions in his main and pro se supplemental
briefs, and conclude that none warrants reversal or modification.




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
