Appeal from four judgments of the City Court of Mount Vernon, Westchester County (Mark A. Gross, J.), rendered June 30, 2011. The judgments convicted defendant, upon jury verdicts, of endangering the welfare of a child under Docket Number 09-3245, forcible touching under Docket Number 09-3246, endangering the welfare of a child, forcible touching, and sexual abuse in the second degree under Docket Number 09-3247, and endangering the welfare of a child, forcible touching, and sexual abuse in the second degree under Docket Number 09-3248, respectively.

ORDERED that the judgments of conviction rendered under Docket Numbers 09-3247 and 09-3248 are modified, on the law, by vacating the sentences imposed thereon, and the matter is remitted to the City Court for resentencing on those convictions; as so modified, the judgments of conviction rendered under Docket Numbers 09-3247 are 09-3248 are affirmed; and it is further,

ORDERED that the judgments of conviction rendered under Docket Numbers 09-3245 and 09-3246 are affirmed.

Defendant's convictions arise from several incidents involving three females, aged 11, 13 and 14, respectively, that allegedly occurred at a summer education program.

Prior to the commencement of a jury trial, defendant challenged for cause a prospective juror who had initially indicated that he believed that defendant had to prove that the People's witnesses had a motive to lie in order to find defendant not guilty. The City Court subsequently provided detailed and specifically tailored supplemental instructions to the prospective jury panel explaining, among other things, that defendant had no burden at all, that the jury could not hold it against defendant if he failed to present a case, and that a jury "sometimes" does not "get as much information as [it] might want." The prospective panel, including the challenged juror, accepted the court's supplemental instructions. On appeal, defendant contends that the trial court erred because it elicited collective responses to its supplemental instructions from the panel, rather than an individual response from the prospective juror. However, this specific claim was not raised before the trial court, and, thus, is unpreserved for appellate review (see People v Martinez, 39 Misc 3d 149[A], 2013 NY Slip Op 50947[U], *2 [App Term, 9th & 10th Jud Dists 2013] People v Crane, 35 Misc 3d 132[A], 2012 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists 2012]), and we decline to review the claim in the interest of justice (see People v Chatman, 281 AD2d 964, 964-965 [2001] People v Campbell, 11 AD3d 760 [2013]).

Defendant's further argument on appeal, that reversal is required because the superseding misdemeanor information under Docket Number 09-3246 contained counts that were duplicitous, is without merit. This superseding misdemeanor information charged defendant with forcible touching, endangering the welfare of a child, and harassment in the second degree. However, the trial court dismissed the charge of endangering the welfare of a child, and the jury found defendant not guilty of harassment in the second degree. Moreover, the trial court's charge eliminated any danger that different jurors may have convicted defendant based on different acts, [*2]by explicitly instructing the jury that the forcible touching and the harassment charges involved specific, separate, and discrete acts (see People v Sinha, 84 AD3d 35, 45-46 [2011], affd 19 NY3d 932 [2012] People v Brown, 82 AD3d 1698, 1701 [2011] People v Whitfield, 255 AD2d 924 [1998]).

Contrary to defendant's contention, the trial court did not abuse its discretion in declining defendant's request for a missing witness charge with respect to four minors not called by the People as witnesses (see People v Savinon, 100 NY2d 192, 197 [2003] People v Macana, 84 NY2d 173, 179-180 [1994] People v Gonzalez, 68 NY2d 424, 427-428 [1986]). Under the circumstances of this case, the People met their burden of establishing that two of the allegedly missing witnesses were unavailable because they refused to cooperate and participate in the prosecution of this case (see People v Greene, 87 AD3d 551, 552 [2011] People v Porter, 268 AD2d 538 [2000] People v Hernandez, 256 AD2d 18, 19 [1998] People v Garcia, 219 AD2d 541 [1995] People v Baker, 174 AD2d 1019, 1020 [1991]). The parents of these two allegedly missing witnesses either did not respond to several police requests for an interview or explicitly refused to permit their child to testify. Thus, "it would not be natural to expect the People to call" them as witnesses (People v Gardine, 293 AD2d 287, 287-288 [2002]). The two other allegedly missing witnesses were not knowledgeable about material issues in the case, as the incidents in question took place in a windowless, pitch dark room. Moreover, even if the two witnesses were knowledgeable about material issues in the case, their testimony would have been cumulative to other evidence presented by the witnesses who testified at the trial (see People v Gonzalez, 68 NY2d at 428). In any event, any error with respect to the trial court's failure to provide a missing witness charge was rendered harmless, as defendant was permitted to comment during summation on the People's failure to call the four witnesses (see People v Wilkins, 75 AD3d 847, 849 [2010] People v Demagall, 63 AD3d 34, 40 [2009] see also People v Hall, 18 NY3d 122, 132 [2011]).

Defendant's remaining contentions are without merit.

The People correctly concede that defendant was not sentenced on each of the counts of the judgment rendered under Docket Number 09-3247, convicting him of endangering the welfare of a child, forcible touching, and sexual abuse in the second degree, or on each of the counts of the judgment rendered under Docket Number 09- 3248, convicting him of endangering the welfare of a child, forcible touching, and sexual abuse in the second degree. CPL 380.20 requires that "the court must pronounce sentence on each count" of which the defendant is convicted. Because the court did not do so, those judgments must be modified by vacating the sentences imposed thereon and remitting the matter to the City Court for resentencing on each count of those judgments (see People v Sturgis, 69 NY2d 816 [1987] People v Henry, 80 AD3d 625, 626 [2011] People v Caravousanos, 2 Misc 3d 7, 11 [App Term, 9th & 10th Jud Dists 2003]). However, the court correctly sentenced defendant on the judgment rendered under Docket Numbers 09-3245, convicting him of endangering the welfare of a child, and the judgment rendered under Docket Number 09-3246, convicting him of forcible touching. Accordingly, those judgments are affirmed.

Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: January 31, 2014