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

786
KA 05-01321
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GUSTAVO ROMAN, DEFENDANT-APPELLANT.


PHILLIP R. HURWITZ, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered December 3, 2004. The judgment convicted
defendant, upon a jury verdict, of rape in the first 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 two counts of rape in the first degree (Penal Law § 130.35
[1], [4]), defendant contends that the evidence is legally
insufficient to support the conviction. Defendant failed to preserve
that contention for our review, however, both “because his motion for
a trial order of dismissal ‘was not specifically directed at the
ground[s] advanced on appeal’ ” (People v Johnson, 78 AD3d 1548, lv
denied 16 NY3d 743; see People v Hawkins, 11 NY3d 484, 492; People v
Gray, 86 NY2d 10, 19), and because he failed to renew his motion after
presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied
97 NY2d 678). In any event, we reject that contention (see generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant failed to object to the alleged repugnancy of the
verdict before the jury was discharged and thus failed to preserve for
our review his contention that the verdict is repugnant insofar as the
jury found him guilty of two counts of rape in the first degree and
acquitted him of two counts of rape in the first degree with respect
to the same victim (see People v Alfaro, 66 NY2d 985, 987; People v
Henderson, 78 AD3d 1506, 1507, lv denied 16 NY3d 743). In any event,
that contention likewise is without merit inasmuch as County Court’s
initial and supplemental charges, viewed both as a whole and together
with the summations and the trial testimony, adequately informed the
jury that the acts underlying the charges in the fifth and sixth
counts of which defendant was convicted were alleged to have occurred
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                                                         KA 05-01321

subsequent to the charges in the counts of which he was acquitted.
Thus, the charges were adequately linked sequentially to the victim’s
testimony (see generally People v Hutchinson, 213 AD2d 1048, 1048-
1049, lv denied 86 NY2d 736; People v Drayton, 198 AD2d 770).
Contrary to defendant’s further contention, he was not denied
effective assistance of counsel based on defense counsel’s failure to
object to the verdict on repugnancy grounds. Because we have
concluded herein that the verdict is not repugnant, it cannot be said
that, if such an objection had been made, it would have been
successful (see generally People v Caban, 5 NY3d 143, 152; People v
Wright, 41 AD3d 1221, lv denied 9 NY3d 928; People v Phelps, 4 AD3d
863, lv denied 2 NY3d 804).

     Defendant failed to preserve his further contention that the
court’s Allen charge coerced a verdict (see People v Al-Kanani, 33
NY2d 260, 265, cert denied 417 US 916; People v White, 75 AD3d 109,
125, lv denied 15 NY3d 758; People v Gaffney, 299 AD2d 922, 923, lv
denied 99 NY2d 582). In any event, the court’s Allen charge, “when
read as a whole, . . . was neutral and balanced” (People v Miller, 292
AD2d 165, lv denied 98 NY2d 678), and was not coercive (see People v
Harrington, 262 AD2d 220, lv denied 94 NY2d 823; People v Gonzalez,
259 AD2d 631, 631-632, lv denied 93 NY2d 970). Furthermore,
“[b]ecause the Allen charge was not improper, the defendant’s
ineffective assistance of counsel claim, [insofar as it is] based . .
. on his attorney’s failure to object to the charge, is without merit”
(People v McKenzie, 48 AD3d 594, 595, lv denied 10 NY3d 867).

     With respect to defendant’s further contention that he was
deprived of a fair trial by prosecutorial misconduct during
summations, “[a]s defendant . . . concede[s] . . ., he did not object
to all of the cited alleged improprieties. Thus, most of his claims
have not been preserved for [our] review” (People v Overlee, 236 AD2d
133, 136, lv denied 91 NY2d 976). We decline to exercise our power to
review those claims that are not preserved for our review (see CPL
470.15 [6] [a]), and we reject defendant’s contention with respect to
the remaining claims. Importantly, we note that “the prosecutor [did
not] vouch for the credibility of the People’s witnesses. Faced with
defense counsel’s focused attack on their credibility, the prosecutor
was clearly entitled to respond by arguing that the witnesses had, in
fact, been credible . . . An argument by counsel that his [or her]
witnesses have testified truthfully is not vouching for their
credibility” (Overlee, 236 AD2d at 144). Furthermore, even assuming,
arguendo, that defendant preserved for our review his contention that
a juror engaged in misconduct by failing to disclose that she had read
newspaper coverage of this incident, we conclude that “the court’s
inquiry of the juror[] at issue sufficiently established that [she]
had not engaged in ‘misconduct of a substantial nature’ ” (People v
Fernandez, 269 AD2d 167, 168, lv denied 95 NY2d 796, quoting CPL
270.35 [1]).

     The sentence is not unduly harsh or severe. We note, however,
that the certificate of conviction incorrectly recites that, under
count six of the indictment, defendant was convicted of rape in the
                                 -3-                          786
                                                        KA 05-01321

first degree under Penal Law § 130.35 (3), and it must therefore be
amended to reflect that he was convicted under Penal Law § 130.35 (4)
(see People v Martinez, 37 AD3d 1099, 1100, lv denied 8 NY3d 947). We
have considered defendant’s remaining contentions, including his
additional contentions concerning the sentence and ineffective
assistance of counsel not expressly addressed herein, and conclude
that they are without merit.




Entered:   June 10, 2011                       Patricia L. Morgan
                                               Clerk of the Court
