Opinion
11-10-2016
The PEOPLE of the State of New York, Respondent, v. Terrence REDFIELD, also known as Terrance, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Defendant–Appellant. Terrence Redfield, Defendant–Appellant pro se. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Defendant–Appellant.
Terrence Redfield, Defendant–Appellant pro se.
Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:On appeal from a judgment convicting him, upon a jury verdict, of sexual abuse in the first degree (Penal Law § 130.65[4] ), defendant contends, inter alia, that the conviction is not supported by legally sufficient evidence. We reject that contention. Viewing the evidence in the light most favorable to the People, we conclude that there is a “ ‘valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ ” (People v. Acosta, 80 N.Y.2d 665, 672, 593 N.Y.S.2d 978, 609 N.E.2d 518 ; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Specifically, we conclude that the evidence is legally sufficient to establish that defendant placed his hand on the vagina of the underage victim for the purpose of sexual gratification (see §§ 130.00[3]; 130.65[4]; see also People v. Chrisley, 126 A.D.3d 1495, 1496, 8 N.Y.S.3d 511, lv. denied 26 N.Y.3d 1007, 20 N.Y.S.3d 548, 42 N.E.3d 218 ; People v. Graves, 8 A.D.3d 1045, 1045, 778 N.Y.S.2d 364, lv. denied 3 N.Y.3d 674, 784 N.Y.S.2d 13, 817 N.E.2d 831 ). Moreover, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Contrary to defendant's contention, the trial testimony of the victim “ ‘was not so inconsistent or unbelievable as to render it incredible as a matter of law’ ” (People v. Adams, 59 A.D.3d 928, 929, 872 N.Y.S.2d 616, lv. denied 12 N.Y.3d 813, 881 N.Y.S.2d 21, 908 N.E.2d 929 ; see People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661 ).
We reject defendant's contention that Supreme Court erred in permitting the People to adduce evidence of his subsequent immoral conduct towards the victim. Such evidence was relevant to establish the nature of the relationship between defendant and the victim and to place “the charged conduct in context” (People v. Leeson, 12 N.Y.3d 823, 827, 880 N.Y.S.2d 895, 908 N.E.2d 885 ; see People v. Maxey, 129 A.D.3d 1664, 1665, 14 N.Y.S.3d 845, lv. denied 27 N.Y.3d 1002, 38 N.Y.S.3d 112, 59 N.E.3d 1224, reconsideration denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 ; People v. Young, 99 A.D.2d 373, 375, 472 N.Y.S.2d 802 ; see also People v. Denson, 26 N.Y.3d 179, 186–188, 21 N.Y.S.3d 179, 42 N.E.3d 676 ). Such evidence also was relevant to show defendant's motive and intent at the time of the charged offense. The court did not abuse its discretion in concluding that the probative worth of the evidence on those matters outweighed the danger of unfair prejudice to defendant (see Denson, 26 N.Y.3d at 186–187, 21 N.Y.S.3d 179, 42 N.E.3d 676 ; People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ). Concerning the remaining aspects of the court's pretrial ruling, we conclude that the proffered evidence, which concerned the affectionate nature of the relationship between defendant and the victim and defendant's purchase of swimwear for the victim prior to the charged offense, did not constitute Molineux evidence (see generally People v. Englert, 130 A.D.3d 1532, 1533, 14 N.Y.S.3d 848, lv. denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581, reconsideration denied 26 N.Y.3d 1144, 32 N.Y.S.3d 58, 51 N.E.3d 569 ). We further conclude that the court did not err in admitting that non–Molineux evidence pursuant to general principles governing relevancy (see generally People v. Davis, 43 N.Y.2d 17, 27, 400 N.Y.S.2d 735, 371 N.E.2d 456, cert. denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88 ).
Contrary to defendant's contention, the prosecutor did not personally vouch for the credibility of the victim and thereby make himself an unsworn witness against defendant (see People v. Moye, 12 N.Y.3d 743, 744, 879 N.Y.S.2d 354, 907 N.E.2d 267 ; People v. Typhair, 12 A.D.3d 832, 834, 784 N.Y.S.2d 695, lv. denied 4 N.Y.3d 803, 795 N.Y.S.2d 179, 828 N.E.2d 95 ; see generally People v. Lovello, 1 N.Y.2d 436, 438–439, 154 N.Y.S.2d 8, 136 N.E.2d 483 ). Moreover, the prosecutor's attempts to persuade the jurors as to the credibility of the victim and her account constituted fair comment on the evidence (see People v. Rivera, 133 A.D.3d 1255, 1256, 18 N.Y.S.3d 813, lv. denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 ), and fair response to the summation of defense counsel (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Jackson, 141 A.D.3d 1095, 1096, 35 N.Y.S.3d 610 ). Defendant's remaining claims of prosecutorial misconduct are not preserved for our review, and we decline to exercise our power to review those claims as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ; People v. Smith, 129 A.D.3d 1549, 1549–1550, 10 N.Y.S.3d 374, lv. denied 26 N.Y.3d 971, 18 N.Y.S.3d 608, 40 N.E.3d 586 ).
We have considered defendant's remaining contentions raised in his main and pro se supplemental briefs and conclude that none warrants reversal or modification of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.