People v. Dixon

• Citation: 2022 NY Slip Op 07447
• Decision Date: 28 December 2022
• Docket Number: s. 2014-05271,2014-05272
• Parties: The People of the State of New York, respondent, v. Kerbet Dixon, appellant. (Ind. Nos. 498/12, 54/13)
• Court: New York Supreme Court Appellate Division

2022 NY Slip Op 07447

The People of the State of New York, respondent,
v.
Kerbet Dixon, appellant. (Ind. Nos. 498/12, 54/13)

Nos. 2014-05271, 2014-05272

Supreme Court of New York, Second Department

December 28, 2022

Patricia Pazner, New York, NY (David L. Goodwin and David Fitzmaurice of counsel), for appellant, and appellant pro se.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.

ANGELA G. IANNACCI, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE JANICE A. TAYLOR, JJ.

DECISION & ORDER

Appeal by the defendant from two judgments of the Supreme Court, Queens County (Richard L. Buchter, J.), both rendered April 21, 2014, convicting him of course of sexual conduct against a child in the first degree, sexual abuse in the third degree, endangering the welfare of a child, promoting a sexual performance by a child (150 counts), and possessing a sexual performance by a child (150 counts), upon a jury verdict, and course of sexual conduct against a child in the first degree, endangering the welfare of a child, and rape in the third degree (two counts), upon his plea of guilty, under Indictment No. 498/12, and possessing a sexual performance by a child (334 counts) under Indictment No. 54/13, upon a jury verdict, and imposing sentences.

ORDERED that the judgments are affirmed.

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to sever counts 1 through 7 from counts 8 through 307 under Indictment No. 498/12, since the nature of the proof for the first set of charges was material and admissible as evidence upon the trial of the second set of charges (see CPL 200.20[2][b]; People v Bongarzone, 69 N.Y.2d 892, 895; People v Smith, 153 A.D.3d 1288). As the offenses were properly joined in one indictment from the outset pursuant to CPL 200.20(2)(b), the court lacked the statutory authority to sever them (see CPL 200.20[3]; People v Bongarzone, 69 N.Y.2d at 895).

The defendant's contention that the evidence was legally insufficient to support his convictions of course of sexual conduct against a child in the first degree under count 3 of Indictment No. 498/12, and of promoting a sexual performance by a child, is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that...