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
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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