People v. Hardison

Mar 30, 2004
Versions:5 A.D.3d 312
773 N.Y.S.2d 550

*313Judgment, Supreme Court, New York County (Renee White, J.), rendered March 12, 2002, convicting defendant, after a jury trial, of rape in the first degree and sodomy in the first degree, and sentencing him to consecutive terms of 121/2 to 25 years, unanimously affirmed.

In view of the court’s thorough instructions on the People’s burden of proof, there is no reasonable possibility that the jury could have construed the challenged portion of the People’s summation as shifting that burden to the defense (see People v Planca, 225 AD2d 470, 471 [1996], lv denied 88 NY2d 968 [1996]). Furthermore, were we to find any error, we would find it to be harmless in view of the overwhelming evidence of defendant’s guilt (see People v Crimmins, 36 NY2d 230 [1975]).

Since defendant did not move to suppress his DNA sample, CPL 710.70 (3) forecloses review of his claim that it was obtained by means of an unlawful search and seizure. In any event, defendant’s argument is unavailing (see Executive Law § 995 et seq.; Kellogg v Travis, 188 Misc 2d 164, 167 [2001], mod 298 AD2d 323 [2002], affd 100 NY2d 407 [2003]).

The court properly imposed consecutive sentences for the rape and sodomy, which were separate and discrete acts (People v Williams, 202 AD2d 347, 348 [1994], affd 85 NY2d 886 [1995]). We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Mazzarelli, Sullivan, Friedman and Gonzalez, JJ.