SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

415 

KA 03-00695 

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RAMON FLORES, DEFENDANT-APPELLANT. 

 

ANNA JOST, TONAWANDA, FOR DEFENDANT-APPELLANT. 

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THERESA L. PREZIOSO

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Niagara County Court (Sara S.

Sperrazza, J.), rendered March 6, 2003. The judgment convicted

defendant, upon a jury verdict, of sexual abuse in the first degree,

rape in the first degree (two counts), attempted sodomy in the first

degree (two counts) and sodomy in the first degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified as a matter of discretion in the interest of

justice and on the law by reversing that part convicting defendant of

attempted sodomy in the first degree under count three of the

indictment and dismissing that count of the indictment and as modified

the judgment is affirmed. 

Memorandum: Defendant appeals from a judgment convicting him,

following a jury trial, of one count each of sexual abuse in the first

degree (Penal Law § 130.65 [3]) and sodomy in the first degree (former

§ 130.50 [3]), and two counts each of rape in the first degree (§

130.35 [3]) and attempted sodomy in the first degree (§ 110.00, former

§ 130.50 [3]). The evidence presented at trial established that, over

the course of a month, defendant subjected a nine-year-old girl to

various sexual acts on three separate occasions. Defendant’s

contention that he was denied his right to due process by

preindictment delay is unpreserved for our review (see People v Peck,

31 AD3d 1216, lv denied 9 NY3d 992). 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]), particularly in view of

the fact that the lack of preservation deprived the People of an

opportunity to refute defendant’s claims of prejudice and to

demonstrate that there were legitimate reasons for the delay. 

We reject defendant’s further contention that the conviction of

sexual abuse in the first degree and rape in the first degree under

the first two counts of the indictment must be reversed because the
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KA 03-00695 

counts are “multiplicitous.” The two counts are “non-inclusory

concurrent counts, and thus both charges and convictions can stand”

(People v Scott, 12 AD3d 1144, 1145, lv denied 4 NY3d 767). Defendant

failed to preserve for our review his contention that the evidence is

legally insufficient to support the conviction of attempted sodomy in

the first degree under count three of the indictment because he failed

to renew his motion for a trial order of dismissal after presenting

evidence (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d

678). We nevertheless exercise our power to review that contention as

a matter of discretion in the interest of justice (see CPL 470.15 [6]

a]), and we agree with defendant that reversal of the conviction of

that count is required. We therefore modify the judgment accordingly. 

The victim testified that defendant told her to put her mouth on his

penis but that he did not touch her, and she further testified that,

when she told him that she would not do so, she merely walked away. 

While defendant thereafter physically restrained the victim and had

intercourse with her by forcible compulsion, for which he was

convicted of rape, the evidence is legally insufficient to establish

that defendant came “ ‘dangerously close’ ” to committing sodomy

(People v Lamagna, 30 AD3d 1052, 1053, lv denied 7 NY3d 814). We have

considered defendant’s remaining contentions concerning the alleged

legal insufficiency of the evidence and conclude that they are without

merit (see generally People v Bleakley, 69 NY2d 490, 495). 

We also reject defendant’s contention that he was denied

effective assistance of counsel based on defense counsel’s failure to

hire an expert witness to refute the testimony offered at trial by the

People’s experts. Although we recently concluded in People v Okongwu

(71 AD3d 1393, 1395) that defense counsel was ineffective based in

part on the failure to obtain an expert witness, defendant’s reliance

on that case is misplaced. Here, in contrast to Okongwu, defense

counsel effectively cross-examined the People’s experts and raised

certain areas of possible doubt arising from their testimony. We thus

conclude that defendant received meaningful representation (see

generally People v Baldi, 54 NY2d 137, 147). 

We further conclude that defendant was not deprived of a fair

trial by prosecutorial misconduct on summation. Contrary to

defendant’s contentions, none of the prosecutor’s comments denigrated

the defense (see People v Jackson, 239 AD2d 948, lv denied 90 NY2d

940, 942), and defendant was not entitled to his own copy of the

videotape of the victim’s testimony that was presented to the grand

jury, which counsel was afforded an opportunity to view (see People v

Smith, 289 AD2d 1056, 1058, lv denied 98 NY2d 641). Moreover, having

reviewed the video, we conclude that it complies with the mandates of

CPL 190.32. Finally, the sentence is not unduly harsh or severe. 

Entered: April 1, 2011 Patricia L. Morgan

Clerk of the Court