People v Cumberland

People v Cumberland 2006 NY Slip Op 07587 [33 AD3d 483] October 19, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

The People of the State of New York, Respondent,
v
Robert Cumberland, Appellant.

—[*1]

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 1752/3 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 Vermo, 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 [*2]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.