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

358
KA 08-00631
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HARRELL BONNER, ALSO KNOWN AS DAMIEN PROPHET,
ALSO KNOWN AS PETE WALLER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THOMAS E. ANDRUSCHAT, EAST AURORA, FOR DEFENDANT-APPELLANT.

HARRELL BONNER, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS TEXIDO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered January 28, 2008. The judgment convicted
defendant, upon a jury verdict, of promoting prostitution in the
second degree and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a jury trial of promoting prostitution in the
second degree (Penal Law § 230.30 [1]) and assault in the second
degree (§ 120.05 [2]). In appeal No. 2, defendant appeals from a
judgment convicting him, following the same jury trial, of three
counts of murder in the second degree (§ 125.25 [1], [3]). We reject
defendant’s contention that County Court erred in denying his motion
to sever the two murder counts relating to one victim from the
remaining murder count relating to the second victim. Even assuming,
arguendo, that those counts were not properly joinable pursuant to CPL
200.20 (2) (b), we nevertheless conclude that the offenses were
properly joinable given that they “are defined by the same or similar
statutory provisions and consequently are the same or similar in law”
(CPL 200.20 [2] [c]; see People v June, 30 AD3d 1016, 1017, lv denied
7 NY3d 813, 868). We further conclude that the court did not abuse
its discretion in denying defendant’s motion for severance with
respect to the murder counts “in the interest of justice and for good
cause shown” (CPL 200.20 [3]; see People v Mahboubian, 74 NY2d 174,
183). There was not a “substantial difference in the quantum of proof
presented with respect to the separate” murders (People v McDougald,
155 AD2d 867, lv denied 75 NY2d 870; see CPL 200.20 [3] [a]), and
                                 -2-                           358
                                                         KA 08-00631

defendant did not demonstrate that he had a “genuine need to refrain”
from testifying with respect to one of the murders (CPL 200.20 [3]
[b]). Although defendant contends that the court also erred in
consolidating the two indictments for trial, that contention is
unpreserved for our review (see CPL 470.05 [2]), and it lacks merit in
any event.

     We reject defendant’s further contention that he was deprived of
a fair trial by the court’s Molineux ruling. The Molineux evidence
admitted at trial was relevant to establish defendant’s motive for
beating and killing the victims, and to establish defendant’s modus
operandi and common scheme of using physical abuse to instill fear and
obedience in the prostitutes who worked for him (see People v
Molineux, 168 NY 264, 293-294). We further conclude that the court
did not abuse its discretion in determining that the probative value
of the evidence outweighed its potential for prejudice (see People v
Alvino, 71 NY2d 233, 242). Defendant failed to preserve for our
review his challenge to the court’s Sandoval ruling (see People v
Caswell, 49 AD3d 1257, 1258, lv denied 11 NY3d 735, 740; People v
Hawkes, 39 AD3d 1209, 1211, lv denied 9 NY3d 844, 845) and, in any
event, his challenge is without merit.

     Defendant further contends that the court violated his right to
confront witnesses against him by allowing the Deputy Chief Medical
Examiner of Erie County to testify as to the cause of death of one of
the victims even though she did not perform the autopsy on that
victim. According to defendant, he should have been allowed to
confront the individual who performed the autopsy. Defendant failed
to preserve that contention for our review (see People v Evans, 59
AD3d 1127, 1127-1128, lv denied 12 NY3d 815). We note in any event
that any error in the admission of the testimony is harmless (see
generally People v Crimmins, 36 NY2d 230, 237), particularly in view
of the absence of prejudice suffered by defendant as a result of the
admission of that testimony (see generally People v Bryant, 27 AD3d
1124, 1125-1126, lv denied 7 NY3d 753). In light of the brutal and
sadistic nature of defendant’s crimes and his utter lack of remorse,
we reject his challenges to the severity of the sentences imposed.

     Finally, we have reviewed defendant’s contentions raised in his
pro se supplemental brief and conclude that they lack merit.




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
