| People v Davis |
| 2007 NY Slip Op 08575 [45 AD3d 1351] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jobie L.Davis, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedSeptember 19, 2005. The judgment convicted defendant, upon a jury verdict, of rape in thesecond degree (four counts), attempted rape in the second degree, incest (four counts), attemptedincest, endangering the welfare of a child (five counts), and sexual abuse in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him of, inter alia, four countseach of rape in the second degree (Penal Law § 130.30 [1]) and incest in the third degree(§ 255.25), five counts of endangering the welfare of a child (§ 260.10 [1]), and onecount of sexual abuse in the second degree (§ 130.60 [2]). Contrary to defendant'scontention, County Court did not abuse its discretion in determining pursuant to CPL 60.42 thatdefendant was not entitled to present evidence that the victim had contracted chlamydia. It isuncontroverted that only CPL 60.42 (5) applies here, and we conclude that defendant failed todemonstrate that such evidence was "relevant and admissible in the interests of justice" (id.; see People v Wright, 37 AD3d1142 [2007], lv denied 8 NY3d 951 [2007]; see also People v White, 261AD2d 653, 655-656 [1999], lv denied 93 NY2d 1029 [1999]). Contrary to defendant'sfurther contention, the People were not required to corroborate the victim's sworn testimony. Thevictim is deemed incapable of consenting to defendant's sexual conduct based on her age, not onmental defect or incapacity (see Penal Law § 130.16; People v Lamphier,302 AD2d 864, 865 [2003], lv denied 99 NY2d 656 [2003]; People v McLoud,291 AD2d 867 [2002], lv denied 98 NY2d 678 [2002]). We conclude that the verdict isnot against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]), and that defendant received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Contrary to defendant's further contention, the testimonyof the victim did not "tend[ ] to establish the commission of multiple criminal acts during [thetime periods] specified in the indictment," and thus that testimony did not render the indictmentduplicitous (People v Bracewell, 34AD3d 1197, 1198 [2006]). The sentence is not unduly harsh or severe. We have examineddefendant's remaining contentions and conclude that they are lacking in merit.Present—Scudder, P.J., Hurlbutt, Fahey, Green and Pine, JJ.