People v. McMullen

177 A.D.2d 1001, 578 N.Y.S.2d 21, 1991 N.Y. App. Div. LEXIS 18087

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1991
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: We reject defendant’s argument that three counts of the indictment should have been severed from the other counts in order to provide separate trials with respect to each of the two victims. Contrary to defendant’s assertions, there was not substantially more proof on the offenses involving one victim than on the offenses involving the other. There was no substantial likelihood that the jury would be unable to consider the proof separately as it related to each offense. Although the victim in the first incident was unable to identify defendant because she had not observed his face, she did identify the knife he used to threaten her and the bicycle on which he rode away. Defendant’s detailed confession and the testimony that he led police to the exact spot where the rape occurred provided conclusive proof of defendant’s guilt of raping, robbing and sodomizing the first victim.

Because of the violent nature of the multiple offenses committed by defendant, his lack of remorse and his previous criminal history, we conclude that the sentence is not harsh and excessive.

Finally, defendant failed to preserve for appellate review his arguments that the prosecution improperly impeached its own witness and erroneously proffered testimony bolstering the identification testimony of one of the victims. (Appeal from Judgment of Supreme Court, Onondaga County, Gorman, J.— Rape, 1st Degree.) Present—Doerr, J. P., Denman, Boomer, Green and Davis, JJ.