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

415
KA 03-00695
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAMON FLORES, DEFENDANT-APPELLANT.


ANNA JOST, TONAWANDA, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THERESA L. PREZIOSO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered March 6, 2003. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree,
rape in the first degree (two counts), attempted sodomy in the first
degree (two counts) and sodomy in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reversing that part convicting defendant of
attempted sodomy in the first degree under count three of the
indictment and dismissing that count of the indictment and as modified
the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
following a jury trial, of one count each of sexual abuse in the first
degree (Penal Law § 130.65 [3]) and sodomy in the first degree (former
§ 130.50 [3]), and two counts each of rape in the first degree (§
130.35 [3]) and attempted sodomy in the first degree (§ 110.00, former
§ 130.50 [3]). The evidence presented at trial established that, over
the course of a month, defendant subjected a nine-year-old girl to
various sexual acts on three separate occasions. Defendant’s
contention that he was denied his right to due process by
preindictment delay is unpreserved for our review (see People v Peck,
31 AD3d 1216, lv denied 9 NY3d 992). 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]), particularly in view of
the fact that the lack of preservation deprived the People of an
opportunity to refute defendant’s claims of prejudice and to
demonstrate that there were legitimate reasons for the delay.

     We reject defendant’s further contention that the conviction of
sexual abuse in the first degree and rape in the first degree under
the first two counts of the indictment must be reversed because the
                                 -2-                           415
                                                         KA 03-00695

counts are “multiplicitous.” The two counts are “non-inclusory
concurrent counts, and thus both charges and convictions can stand”
(People v Scott, 12 AD3d 1144, 1145, lv denied 4 NY3d 767). Defendant
failed to preserve for our review his contention that the evidence is
legally insufficient to support the conviction of attempted sodomy in
the first degree under count three of the indictment because he failed
to renew his motion for a trial order of dismissal after presenting
evidence (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d
678). We nevertheless exercise our power to review that contention as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
a]), and we agree with defendant that reversal of the conviction of
that count is required. We therefore modify the judgment accordingly.
The victim testified that defendant told her to put her mouth on his
penis but that he did not touch her, and she further testified that,
when she told him that she would not do so, she merely walked away.
While defendant thereafter physically restrained the victim and had
intercourse with her by forcible compulsion, for which he was
convicted of rape, the evidence is legally insufficient to establish
that defendant came “ ‘dangerously close’ ” to committing sodomy
(People v Lamagna, 30 AD3d 1052, 1053, lv denied 7 NY3d 814). We have
considered defendant’s remaining contentions concerning the alleged
legal insufficiency of the evidence and conclude that they are without
merit (see generally People v Bleakley, 69 NY2d 490, 495).

     We also reject defendant’s contention that he was denied
effective assistance of counsel based on defense counsel’s failure to
hire an expert witness to refute the testimony offered at trial by the
People’s experts. Although we recently concluded in People v Okongwu
(71 AD3d 1393, 1395) that defense counsel was ineffective based in
part on the failure to obtain an expert witness, defendant’s reliance
on that case is misplaced. Here, in contrast to Okongwu, defense
counsel effectively cross-examined the People’s experts and raised
certain areas of possible doubt arising from their testimony. We thus
conclude that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).

     We further conclude that defendant was not deprived of a fair
trial by prosecutorial misconduct on summation. Contrary to
defendant’s contentions, none of the prosecutor’s comments denigrated
the defense (see People v Jackson, 239 AD2d 948, lv denied 90 NY2d
940, 942), and defendant was not entitled to his own copy of the
videotape of the victim’s testimony that was presented to the grand
jury, which counsel was afforded an opportunity to view (see People v
Smith, 289 AD2d 1056, 1058, lv denied 98 NY2d 641). Moreover, having
reviewed the video, we conclude that it complies with the mandates of
CPL 190.32. Finally, the sentence is not unduly harsh or severe.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
