SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

367 

KA 11-00641 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RONDULA LANE, DEFENDANT-APPELLANT.

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

RONDULA LANE, DEFENDANT-APPELLANT PRO SE.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oneida County Court (Barry M.

Donalty, J.), rendered August 9, 2010. The judgment convicted

defendant, upon a jury verdict, of criminal sexual act in the first

degree (four counts), burglary in the second degree and sexual abuse

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 four counts of criminal sexual act in the first

degree (Penal Law § 130.50 [1]), and one count each of burglary in the

second degree (§ 140.25 [2]) and sexual abuse in the first degree (§

130.65 [1]). We reject defendant’s contention that County Court erred

in refusing to suppress his statements to the police. Contrary to

defendant’s contention, the evidence introduced at the suppression

hearing fails to establish that he “ ‘was intoxicated to the degree of

mania, or of being unable to understand the meaning of his 

statements’ ” (People v Schompert, 19 NY2d 300, 305, cert denied 389

US 874; see People v Lake, 45 AD3d 1409, 1410, lv denied 10 NY3d 767). 

Defendant’s reliance on evidence introduced at trial in support of his

contention is misplaced. It is well settled that “evidence

subsequently admitted [at] trial cannot be used to support [or

undermine] the determination of the suppression court denying [a]

motion to suppress [an] oral confession; the propriety of the denial

must be judged on the evidence before the suppression court” (People v

Gonzalez, 55 NY2d 720, 721-722, rearg denied 55 NY2d 1038, cert denied

456 US 1010; see People v Carmona, 82 NY2d 603, 610 n 2).

Defendant made only a general motion for a trial order of
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KA 11-00641 

dismissal at the close of the People’s case, and thus failed to

preserve for our review his contention that the evidence is legally

insufficient to support the burglary conviction (see People v Gray, 86

NY2d 10, 19; People v Pollard, 70 AD3d 1403, 1404-1405, lv denied 14

NY3d 891). In any event, that contention is without merit. The

victim testified in detail concerning that crime, and other testimony,

including that of defendant, corroborated her testimony, thereby

satisfying “the proof and burden requirements for every element of the

crime charged” (People v Bleakley, 69 NY2d 490, 495). Furthermore,

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 with respect to all counts is

against the weight of the evidence (see generally Bleakley, 69 NY2d at

495). Even assuming, arguendo, that a different result would not have

been unreasonable, we conclude that the jury did not fail to give the

evidence the weight it should be accorded, and there is no basis upon

which to disturb the jury’s credibility determinations (see generally

id.).

We reject defendant’s further contention that he was denied

effective assistance of counsel. “The constitutional requirement of

effective assistance of counsel will be satisfied [where, as here,]

‘the evidence, the law, and the circumstances of [the] particular

case, viewed in totality and as of the time of the representation,

reveal that the attorney provided meaningful representation’ ” (People

v Flores, 84 NY2d 184, 187). “[I]t is well settled that disagreement

over trial strategy is not a basis for a determination of ineffective

assistance of counsel” (People v Dombrowski, 94 AD3d 1416, 1417, lv

denied 19 NY3d 959; see People v Henry, 74 AD3d 1860, 1862, lv denied

15 NY3d 852; see generally People v Benevento, 91 NY2d 708, 712-714). 

Here, “[t]he alleged instances of ineffective assistance concerning

defense counsel’s failure to make various objections [or certain

motions or requests] ‘are based largely on [defendant’s] hindsight

disagreements with defense counsel’s trial strategies, and defendant

failed to meet his burden of establishing the absence of any

legitimate explanations for those strategies’ ” (People v Douglas, 60

AD3d 1377, 1377, lv denied 12 NY3d 914; see People v Stepney, 93 AD3d

1297, 1298, lv denied 19 NY3d 968).

Defendant failed to preserve for our review his contention in his

main and pro se supplemental briefs that he was deprived of a fair

trial by prosecutorial misconduct during opening and closing

statements because he failed to object to any of the alleged

improprieties (see People v Rumph, 93 AD3d 1346, 1347, lv denied 19

NY3d 967; see also People v Balls, 69 NY2d 641, 642). In any event,

assuming, arguendo, that the prosecutor’s comments were improper, we

conclude that they “did not cause such substantial prejudice to the

defendant that he has been denied due process of law” (People v

Stabell, 270 AD2d 894, 894, lv denied 95 NY2d 804 [internal quotation

marks omitted]; see People v Agostini, 84 AD3d 1716, 1716, lv denied

17 NY3d 857). 

Defendant failed to preserve for our review his further
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KA 11-00641 

contention that he was deprived of a fair trial by the introduction of

certain evidence. Specifically, the record establishes that defendant

moved to preclude parts of a recording that the police made of his

statements on the ground that they contained evidence of uncharged

crimes and, although the court denied the motion, the court gave

prompt curative instructions to the jury at trial when the recording

was played. Defendant did not object to the instructions that were

given, nor did he object further or seek a mistrial, and he thus

failed to preserve for our review his contention that he was deprived

of a fair trial by the introduction of the evidence. “Under these

circumstances, the curative instructions must be deemed to have

corrected the error to the defendant’s satisfaction” (People v Heide,

84 NY2d 943, 944; see People v Adams, 90 AD3d 1508, 1509, lv denied 18

NY3d 954). 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]). 

We reject defendant’s contention that the court erred in imposing

consecutive sentences on the counts of the indictment charging him

with sexual abuse and criminal sexual act. “[I]t is well settled that

consecutive sentences may be imposed where[, as here,] acts of deviate

sexual intercourse occur within a continuous sexual incident [inasmuch

as] the material elements are distinct and require different sexual

acts” (People v Lanfair, 18 AD3d 1032, 1033-1034, lv denied 5 NY3d

790; see People v Laureano, 87 NY2d 640, 643; People v Ramirez, 44

AD3d 442, 445, lv denied 9 NY3d 1008).

Defendant failed to preserve for our review his contention in his

pro se supplemental brief that certain counts of the indictment are

facially duplicitous (see People v Becoats, 71 AD3d 1578, 1579, affd

17 NY3d 643, cert denied ___ US ___, 132 S Ct 1970). In any event,

that contention is without merit inasmuch as “[e]ach count of [the]

indictment . . . charge[s] one offense only” (CPL 200.30 [1]). 

Furthermore, although defendant’s additional contention that the

indictment was rendered duplicitous by the trial testimony need not be

preserved for our review (see People v Filer, 97 AD3d 1095, 1096, lv

denied 19 NY3d 1025; People v Boykins, 85 AD3d 1554, 1555, lv denied

17 NY3d 814), that contention is also without merit. The victim’s

testimony and the court’s charge establish that different conduct is

alleged in each of the various counts (see People v Alonzo, 16 NY3d

267, 269), and that the incident was not a single uninterrupted crime

(cf. People v Snyder, 100 AD3d 1367, 1367). Defendant’s further

contention in his pro se supplemental brief concerning the sufficiency

of the evidence before the grand jury is not properly before us. It

“is well established that ‘[t]he validity of an order denying any

motion [to dismiss an indictment for legal insufficiency of the grand

jury evidence] is not reviewable upon an appeal from an ensuing

judgment of conviction based upon legally sufficient trial evidence’ ”

(People v Afrika, 79 AD3d 1678, 1679, lv denied 17 NY3d 791, quoting

CPL 210.30 [6]; see People v Smith, 4 NY3d 806, 808). Here, we

rejected defendant’s challenge to the legal sufficiency of the

evidence with respect to the burglary conviction, and defendant has

not challenged the legal sufficiency of the evidence with respect to

the remaining convictions (see Smith, 4 NY3d at 808).
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KA 11-00641 

The sentence is not unduly harsh or severe. We have considered

defendant’s remaining contentions in his main and pro se supplemental

briefs, and conclude that none warrants reversal or modification.

Entered: May 3, 2013 Frances E. Cafarell

Clerk of the Court