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

5
KA 10-01790
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONNELL JEFFERSON, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONNELL JEFFERSON, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered July 21, 2010. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault (two
counts), kidnapping in the second degree, and robbery in the first
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 predatory sexual assault (Penal
Law § 130.95 [1] [b]; [3]), and one count each of kidnapping in the
second degree (§ 135.20) and robbery in the first degree (§ 160.15
[3]). Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
The evidence against defendant is based largely on the testimony of
prosecution witnesses, and we afford deference to the jury’s ability
“to view the witnesses, hear the testimony and observe demeanor” (id.;
see People v Gay, 105 AD3d 1427, 1428).

     We further reject defendant’s contention that County Court erred
in permitting a witness to testify that defendant had called her on
the night of the incident and indicated that he might be “going to
jail.” That testimony was admissible because defendant’s statement
was relevant with respect to his consciousness of guilt, and the
probative value of the testimony outweighs any potential prejudice
(see People v Bennett, 79 NY2d 464, 469-470; People v Case, 113 AD3d
872, 873, lv denied 23 NY3d 961). We likewise reject defendant’s
                                 -2-                             5
                                                         KA 10-01790

contention that the court erred in admitting in evidence both the
phone cord found in the victim’s vehicle and the results of the DNA
testing from the cord, based on a gap in the chain of custody. “The
People provided sufficient assurances of the identity and unchanged
condition of the [cord] . . . , and any alleged gaps in the chain of
custody went to the weight of the evidence and not its admissibility”
(People v Johnson, 121 AD3d 1578, 1578; see People v Julian, 41 NY2d
340, 342-343; People v Howard, 2 AD3d 1323, 1323-1324, lv denied 2
NY3d 800). In any event, any error in admitting the cord and the DNA
results in evidence is harmless (see generally People v Crimmins, 36
NY2d 230, 241-242).

     Defendant failed to preserve for our review his contention that
the indictment is multiplicitous with respect to the two counts of
predatory sexual assault (see People v Sponburgh, 61 AD3d 1415, 1416,
lv denied 12 NY3d 929; People v Brandel, 306 AD2d 860, 860) and, in
any event, that contention is without merit. Although the two counts
concern the same victim, they require, respectively, proof that
defendant used or threatened the immediate use of a dangerous
instrument and proof that defendant committed a prior felony under
Penal Law article 130. “An indictment is not multiplicitous if each
count requires proof of an additional fact that the other does not”
(People v Kindlon, 217 AD2d 793, 795, lv denied 86 NY2d 844). We
further conclude that the sentence is not unduly harsh or severe.

      Defendant contends in his main and pro se supplemental briefs
that he was deprived of effective assistance of counsel because, inter
alia, defense counsel waived certain pretrial hearings, waived an
opening statement at trial, and did not cross-examine all of the
prosecution witnesses. To the extent that defendant’s contention
“involve[s] matters outside the record on appeal, . . . the proper
procedural vehicle for raising [that] contention[] is a motion
pursuant to CPL 440.10” (People v Archie, 78 AD3d 1560, 1562, lv
denied 16 NY3d 856). To the extent that defendant’s contention is
properly before us, we conclude that defendant received meaningful
assistance of counsel (see generally People v Baldi, 54 NY2d 137,
147).

     Defendant further contends in his pro se supplemental brief that
he was deprived of a fair trial based on alleged Brady violations.
Those parts of defendant’s contention concerning the prosecutor’s
alleged failure to disclose his ex-girlfriend’s prior exculpatory
statements made on his behalf and the victim’s ex-boyfriend’s prior
written statement involve matters outside the record, and thus must be
raised by a motion pursuant to CPL article 440 (see People v DeJesus,
110 AD3d 1480, 1482, lv denied 22 NY3d 1155). To the extent that
defendant’s contention is reviewable, we conclude that it lacks merit.




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
