People v. Cumberland

33 A.D.3d 483, 822 N.Y.S.2d 284

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 2006
• Status: Published

Opinion

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered March 31, 2004, convicting defendant, after a jury trial, of two counts of rape in the first degree, three counts of sodomy in the first degree, three counts of sexual abuse in the first degree, three counts of kidnapping in the second degree and two counts of robbery in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of 1752/s to 185 years, unanimously modified, on the law, to the extent of vacating each of the kidnapping convictions and dismissing those counts of the indictment, and otherwise affirmed.

The court’s conduct did not deprive defendant of a fair trial (see e.g. People v Gonzalez, 251 AD2d 51, 52-53 [1998], lv denied 92 NY2d 982 [1998]).

While, in cross-examination of defendant about a knife found among his effects in his brother’s apartment, the People should not have asked questions that assumed facts not yet in evidence, we find that the error does not warrant reversal in view of the court’s instructions and the overwhelming evidence of defendant’s guilt. We have considered and rejected defendant’s remaining arguments concerning the knife (see People v Del Yermo, 192 NY 470, 478-482 [1908]).

As the People concede, all three kidnapping charges merged with the underlying crimes (see People v Cassidy, 40 NY2d 763, 767 [1976]).

The arguments contained in defendant’s pro se supplemental brief are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur—Mazzarelli, J.P., Friedman, Gonzalez, Catterson and Malone, JJ.