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

556
KA 10-00758
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARYL L. BURTON, DEFENDANT-APPELLANT.


JUSTIN S. WHITE, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.

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 January 25, 2010. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(two counts), attempted assault in the second degree, assault in the
second degree (three counts), criminal sexual act in the first degree
(two counts), rape in the first degree and criminal sale of a
controlled substance in the third 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 sexual abuse in the first degree
(Penal Law § 130.65 [1]) and one count of attempted assault in the
second degree (§§ 110.00, 120.05 [1]) arising from an incident
involving one complainant, and three counts of assault in the second
degree (§ 120.05 [2]), two counts of criminal sexual act in the first
degree (§ 130.50 [1]), and one count each of rape in the first degree
(§ 130.35 [1]), and criminal sale of a controlled substance in the
third degree (§ 220.39 [2]) arising from separate incidents involving
another complainant. Contrary to defendant’s contention, County Court
properly denied his motion seeking to sever the three counts of the
indictment involving one complainant from the counts involving the
other complainant. “The charges were properly joined pursuant to CPL
220.20 (2) (b) on the ground that the defendant’s modus operandi with
respect to each of the sexual assaults demonstrated a distinctive
pattern” (People v Hussain, 35 AD3d 504, 505, lv denied 8 NY3d 946;
see People v Comfort, 31 AD3d 1110, 1112, lv denied 7 NY3d 847). “In
any event, [certain] offenses [involving each complainant] also were
‘the same or similar in law’ (CPL 200.20 [2] [c]), and defendant
failed to show good cause for severance” (People v Fontanez, 278 AD2d
933, 935, lv denied 96 NY2d 862; see People v Cornell, 17 AD3d 1010,
1011, lv denied 5 NY3d 805; People v Lovett, 303 AD2d 952, lv denied
                                 -2-                           556
                                                         KA 10-00758

100 NY2d 584).

     We also reject defendant’s contention that he was denied
effective assistance of counsel (see generally People v Baldi, 54 NY2d
137, 147). Contrary to defendant’s further contention, the court was
authorized to direct that the sentence imposed for attempted assault
in the second degree run consecutively with the sentences imposed for
sexual abuse in the first degree. Although the attempted assault and
sexual abuse “ ‘took place over a continuous course of activity, they
constituted separate and distinct acts,’ ” and neither crime was a
material element of the other (People v Smith, 269 AD2d 778, 778, lv
denied 95 NY2d 804). Finally, the sentence is not unduly harsh or
severe.




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
