People v. Carmona

Judgment, Supreme Court, New York County (Richard Lowe, III, J.), rendered April 1, 1992, convicting defendant, after a jury trial, of rape in the first degree, sodomy in the first degree (two counts) and assault in the second degree, and sentencing him to concurrent terms of 8 Vs to 25 years on the rape and sodomy counts, and to a consecutive prison term of 2Vs to 1 years on the assault count, unanimously modified, on the law, to the extent of ordering that the sentence on the assault count run concurrently to the sentences on the rape and sodomy counts, and otherwise affirmed.

The trial court improperly sentenced defendant to consecutive sentences since the assault conviction was predicated upon the same acts which gave rise to the conviction for the sex offenses (People v Counts, 97 AD2d 772). However, the sentences, as so modified, were not unduly harsh considering the violent nature of the defendant’s acts.

*444Further, after the trial court admonished the jury to disregard the statement read from the victim’s medical report that defendant "poked and pierced” to force sexual assault, a legal conclusion not germane to diagnosis or treatment, defendant never requested further curative instructions. The present claim that this statement was improperly admitted is therefore unpreserved for appellate review (CPL 470.05 [2]). Nor would we reverse in the interest of justice in view of the overwhelming proof of defendant’s guilt.

We have considered defendant’s remaining claims and find them meritless. Concur—Sullivan, J. P., Rosenberger, Ross, Williams and Tom, JJ.