Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Adrian RILEY, Defendant–Appellant.
John A. Herbowy, Rome, for Defendant–Appellant. Adrian Riley, Defendant–Appellant Pro Se.
John A. Herbowy, Rome, for Defendant–Appellant. Adrian Riley, Defendant–Appellant Pro Se.
Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][a] ). Contrary to defendant's contention, the evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction. In addition, 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 conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Both the victim and defendant testified at trial, and we perceive no basis in the record for disturbing the jurors' credibility determinations ( see People v. Ennis, 107 A.D.3d 1617, 1618, 969 N.Y.S.2d 284,lv. denied22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386;People v. Burgos, 90 A.D.3d 1670, 1671, 937 N.Y.S.2d 483,lv. denied19 N.Y.3d 862, 947 N.Y.S.2d 411, 970 N.E.2d 434).
By failing to object to County Court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention in his main and pro se supplemental briefs that he was denied a fair trial based on the ruling ( see People v. Tolliver, 93 A.D.3d 1150, 1151, 940 N.Y.S.2d 398,lv. denied19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218). In any event, we conclude that the court did not abuse its discretion in allowing the prosecutor to question defendant about his conviction of criminal possession of a weapon in the fourth degree even though he committed that crime after the incident herein ( see People v. Pavao, 59 N.Y.2d 282, 292 n. 3, 464 N.Y.S.2d 458, 451 N.E.2d 216;People v. Davis, 243 A.D.2d 831, 833, 664 N.Y.S.2d 130). That conviction demonstrated defendant's “willingness to place his own interests above those of society” ( People v. Hammond, 84 A.D.3d 1726, 1726–1727, 922 N.Y.S.2d 706,lv. denied17 N.Y.3d 816, 929 N.Y.S.2d 805, 954 N.E.2d 96;see People v. Cosby, 82 A.D.3d 63, 68, 916 N.Y.S.2d 689,lv. denied16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198).
Defendant's further contention in his main and pro se supplemental briefs that he was denied a fair trial by prosecutorial misconduct on summation is preserved for our review with respect to only one instance of alleged misconduct ( seeCPL 470.05[2] ). In any event, we conclude with respect to the unpreserved instances of alleged misconduct that the prosecutor's comments were fair response to defense counsel's summation ( see People v. McIver, 107 A.D.3d 1591, 1592, 966 N.Y.S.2d 727,lv. denied22 N.Y.3d 997, 981 N.Y.S.2d 3, 3 N.E.3d 1171;People v. Roman, 85 A.D.3d 1630, 1632, 925 N.Y.S.2d 310,lv. denied17 N.Y.3d 821, 929 N.Y.S.2d 810, 954 N.E.2d 101). With respect to the preserved instance of alleged misconduct, we agree with defendant that the prosecutor improperly appealed to the jurors' sympathies ( see People v. Fisher, 18 N.Y.3d 964, 967, 944 N.Y.S.2d 453, 967 N.E.2d 676;People v. Ballerstein, 52 A.D.3d 1192, 1194, 860 N.Y.S.2d 718), but we conclude that the court's prompt curative instruction was sufficient to alleviate any prejudice to defendant ( see People v. Chatt, 77 A.D.3d 1285, 1287, 908 N.Y.S.2d 500,lv. denied17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096;People v. Cooley, 50 A.D.3d 1548, 1549, 856 N.Y.S.2d 412,lv. denied10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447).
Defendant contends in his main and pro se supplemental briefs that he was denied effective assistance of counsel. Defendant's contentions regarding defense counsel's failure to conduct a proper investigation are based on information outside the record on appeal and must be raised by way of a motion pursuant to CPL 440.10 ( see People v. Russell, 83 A.D.3d 1463, 1465, 919 N.Y.S.2d 721,lv. denied17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103). Contrary to defendant's contention, he was not denied effective assistance of counsel based on defense counsel's failure to request a bill of particulars ( see People v. Brink, 30 A.D.3d 1014, 1015, 815 N.Y.S.2d 861,lv. denied7 N.Y.3d 810, 822 N.Y.S.2d 485, 855 N.E.2d 801), or failure to call an expert witness to testify ( see People v. Aikey, 94 A.D.3d 1485, 1487, 943 N.Y.S.2d 702,lv. denied19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206;People v. Nelson, 94 A.D.3d 1426, 1426, 942 N.Y.S.2d 821,lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921). We conclude on the record before us that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Defendant contends in his pro se supplemental brief that the court erred in refusing to dismiss the indictment on the ground that the prosecutor allowed the victim to testify before the grand jury without determining her testimonial capacity. Inasmuch as “[d]efendant was convicted upon legally sufficient trial evidence, ... his contention with respect to the competency of the evidence before the grand jury is not reviewable upon an appeal from the ensuing judgment of conviction” ( People v. Pulvino, 115 A.D.3d 1220, 1221, 982 N.Y.S.2d 630 [internal quotation marks omitted]; see People v. Laws, 41 A.D.3d 1205, 1206, 838 N.Y.S.2d 328,lv. denied9 N.Y.3d 991, 848 N.Y.S.2d 609, 878 N.E.2d 1025). We reject defendant's further contention in his pro se supplemental brief that the court abused its discretion in precluding defendant from cross-examining witnesses regarding other allegations of sexual abuse made by the victim ( see People v. Lane, 47 A.D.3d 1125, 1127–1128, 849 N.Y.S.2d 719,lv. denied10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255;People v. Smith, 281 A.D.2d 957, 958, 722 N.Y.S.2d 850,lv. denied96 N.Y.2d 868, 730 N.Y.S.2d 43, 754 N.E.2d 1126). “The preclusion of such questioning does not constitute an abuse of discretion where, as here, defendant made no showing that the prior allegation[s were] false” ( Smith, 281 A.D.2d at 958, 722 N.Y.S.2d 850).
Finally, contrary to defendant's contention in his main brief, the sentence is not unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.