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

191
KA 05-01611
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLARENCE MILLER, DEFENDANT-APPELLANT.


CHRISTINE M. COOK, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered November 30, 2004. The judgment convicted
defendant, after a jury trial, of kidnapping in the second degree,
criminal use of a firearm in the first degree, criminal possession of
a weapon in the second degree, assault in the second degree, assault
in the third degree and reckless endangerment in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the determinate
sentence imposed on count three of the indictment shall run
concurrently with the determinate sentences imposed on counts one and
two and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of, inter alia, kidnapping in the second degree
(Penal Law § 135.20), criminal use of a firearm in the first degree
([CUF] § 265.09 [1] [a]), criminal possession of a weapon in the
second degree ([CPW] § 265.03 [former (2)]), and assault in the second
degree (§ 120.05 [2]). Although defendant contends that he was denied
a fair trial based on prosecutorial misconduct during opening and
closing statements, he did not raise any objection to the allegedly
improper comments at trial and thus failed to preserve his contention
for our review (see People v Lane, 106 AD3d 1478, 1480, lv denied 21
NY3d 1043). “In any event, ‘[w]e do not believe that the cumulative
effect of the asserted instances of misconduct on the part of the
prosecutor prejudiced the verdict and deprived defendant of a fair
trial’ and thus reversal is not required” (People v Gates, 6 AD3d
1062, 1063, lv denied 3 NY3d 659; see People v Russell, 50 AD3d 1569,
1570, lv denied 10 NY3d 939; cf. People v Calabria, 94 NY2d 519, 522-
523). Defendant further contends that he was denied effective
assistance of counsel based on defense counsel’s failure to object to
the allegedly improper comments of the prosecutor. We reject that
contention. Defendant failed “ ‘to demonstrate the absence of
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strategic or other legitimate explanations’ for counsel’s alleged
shortcomings” (People v Benevento, 91 NY2d 708, 712), and the record
establishes that defense counsel provided meaningful representation to
defendant (see generally People v Baldi, 54 NY2d 137, 147).

     Defendant further contends that County Court erred in admitting
in evidence as excited utterances statements made by the victim to an
emergency medical technician (EMT). We reject that contention. It is
well settled that “[t]he admissibility of an excited utterance is
entrusted in the first instance to the trial court. In making that
determination, the court must ascertain whether, at the time the
utterance was made, the declarant was under the stress of excitement
caused by an external event sufficient to still his [or her]
reflective faculties, thereby preventing opportunity for deliberation
which might lead the declarant to be untruthful. The court must
assess not only the nature of the startling event and the amount of
time which has elapsed between the occurrence and the statement, but
also the activities of the declarant in the interim to ascertain if
there was significant opportunity to deviate from the truth. Above
all, the decisive factor is whether the surrounding circumstances
reasonably justify the conclusion that the remarks were not made under
the impetus of studied reflection” (People v Edwards, 47 NY2d 493,
497; see People v Carroll, 95 NY2d 375, 385). Notably, “the time for
reflection is not measured in minutes or seconds, but rather is
measured by facts” (People v Dalton, 88 NY2d 561, 579 [internal
quotation marks omitted]).

     There is no dispute that there was a period of time between the
victim’s treatment by the EMT and her statements. During that period
of time, however, the victim’s child and niece were still in the
apartment with defendant, the man who had kidnapped the victim and
beaten her with a loaded gun. We thus conclude that “ ‘at the time
the utterance[s were] made [the victim] was in fact under the stress
of excitement caused by an external event sufficient to still . . .
her reflective faculties’ . . . , including both the physical and
emotional stress of the [kidnapping and] beating earlier administered
by defendant[,] . . . the stress of being confined in [an apartment
and car] with defendant following the attack,” and the stress of
having two small children still in harm’s way (People v Bryant, 27
AD3d 1124, 1126, lv denied 7 NY3d 753, quoting People v Johnson, 1
NY3d 302, 306).

     “By failing to raise a specific objection, defendant has failed
to preserve for our review his contention that [the] testimony of [the
EMT] constituted bolstering” (People v Butler, 2 AD3d 1457, 1458, lv
denied 3 NY3d 637; see People v West, 56 NY2d 662, 663; People v
Comerford, 70 AD3d 1305, 1306). In any event, because the statements
made by the victim were properly determined to be excited utterances,
they did not constitute improper bolstering (see People v Stevens, 57
AD3d 1515, 1516, lv denied 12 NY3d 822; People v Simms, 244 AD2d 920,
920, lv denied 91 NY2d 897).

     We reject defendant’s further contention that the evidence is
legally insufficient to support the conviction of kidnapping, CUF, CPW
                                 -3-                           191
                                                         KA 05-01611

and assault in the second degree. “Although there were minor
inconsistencies between the victim’s trial testimony and her grand
jury testimony, those inconsistencies did not render her testimony
incredible as a matter of law” (People v Ennis, 107 AD3d 1617, 1618,
lv denied 22 NY3d 1040), i.e., “it was not impossible of belief
because it [was] manifestly untrue, physically impossible, contrary to
experience, or self-contradictory” (People v Bieganowski, 104 AD3d
1276, 1276, lv denied 21 NY3d 1002 [internal quotation marks omitted];
see People v Gaston, 100 AD3d 1463, 1464).

     Viewing the evidence in light of the elements of the crimes of
kidnapping, CUF, CPW and assault in the second degree as charged to
the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that
the verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). “[N]othing in the record
suggests that the victim was ‘so unworthy of belief as to be
incredible as a matter of law’ or otherwise tends to establish
defendant’s innocence of those crimes . . . , and thus it cannot be
said that the jury failed to give the evidence the weight it should be
accorded” (People v Woods, 26 AD3d 818, 819, lv denied 7 NY3d 765; see
generally Bleakley, 69 NY2d at 495).

     Defendant’s final challenges concern the sentence. We agree with
defendant that the court erred in ordering the sentences imposed on
counts one and two, the kidnapping and CUF counts, to run
consecutively to the sentence imposed on count three, the CPW count.
Defendant’s possession of the firearm was not a separate and distinct
act from either the kidnapping or the CUF. With respect to the
kidnapping count, the threatened use of force element of the
kidnapping charge was accomplished because of defendant’s possession
of the gun with the intent to use it; there would have been no
restraint or abduction without that conduct (see People v Rivera, 277
AD2d 470, 472, lv denied 96 NY2d 833; People v Phillips, 182 AD2d 648,
649, lv denied 79 NY2d 1052, 81 NY2d 765). With respect to the CUF
count, one of the elements of that crime is the possession of a loaded
deadly weapon, i.e., the very conduct encompassed by the CPW count
(see People v Laureano, 87 NY2d 640, 644-645; People v Jenkins, 232
AD2d 504, 505, lv denied 89 NY2d 924, reconsideration denied 90 NY2d
859). We thus conclude that, pursuant to Penal Law § 70.25 (2), the
court should have ordered the sentences on those three counts to run
concurrently, and we therefore modify the judgment accordingly.

     With respect to the remaining counts, we conclude that
consecutive sentencing was permissible. Defendant’s possession of the
gun with the intent to use it unlawfully was completed before he used
the gun to commit the remaining crimes, and it continued even after
those crimes were completed (see People v Okafore, 72 NY2d 81, 87).
Thus, defendant’s possession of the weapon was a separate and distinct
act for which consecutive sentences could be imposed (see People v
Salcedo, 92 NY2d 1019, 1021-1022; People v Hurd, 246 AD2d 483, 484, lv
denied 91 NY2d 1008; People v Dugger, 236 AD2d 483, 484, lv denied 89
NY2d 1034).
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                                                         KA 05-01611

     Defendant failed to preserve for our review his contention that
he was penalized for asserting his right to a trial (see People v
Hurley, 75 NY2d 887, 888; People v Motzer, 96 AD3d 1635, 1636, lv
denied 19 NY3d 1104; People v Singleton, 67 AD3d 1455, 1456, lv denied
14 NY3d 773). In any event, that contention lacks merit. “ ‘[T]he
mere fact that a sentence imposed after trial is greater than that
offered in connection with plea negotiations is not proof that
defendant was punished for asserting his right to trial . . . , and
there is no indication in the record before us that the sentencing
court acted in a vindictive manner based on defendant’s exercise of
the right to a trial’ ” (People v Stubinger, 87 AD3d 1316, 1317, lv
denied 18 NY3d 862; see People v Trinidad, 107 AD3d 1432, 1432-1433,
lv denied 21 NY3d 1046).

     Finally, we conclude that the sentence, as modified, is not
unduly harsh or severe.




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
