| People v Martina |
| 2008 NY Slip Op 01233 [48 AD3d 1271] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Louis Martina,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), renderedOctober 21, 2005. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree (three counts), criminal sexual act in the first degree, course of sexual conduct against achild in the first degree, endangering the welfare of a child and falsely reporting an incident inthe third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,three counts of rape in the first degree (Penal Law § 130.35 [4]), defendant contends thatthe evidence is legally insufficient to support the conviction because the 11-year-old victim wasallowed to testify despite her failure to understand the nature of the oath, and the prosecutorasked the victim leading questions on direct examination. We reject that contention (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). An 11-year-old witness is presumedcompetent to testify (see CPL 60.20 [2]; People v Peppard, 27 AD3d 1143 [2006], lv denied 7NY3d 793 [2006]) and, when Supreme Court nevertheless conducted voir dire, the victim"demonstrated that [she] had the requisite intelligence and mental capacity and knew, understoodand appreciated the nature of the oath" (People v Howard, 195 AD2d 1082, 1082[1993], lv denied 82 NY2d 755 [1993]). In addition, the decision "whether to permit theuse of leading questions on direct examination is a matter within the sound discretion of the trialcourt and will not be disturbed absent a clear demonstration of an abuse of discretion"(People v Cuttler, 270 AD2d 654, 655, lv denied 95 NY2d 795; seePrince, Richardson on Evidence § 6-232 [Farrell 11th ed]). In view of "the 'intimate andembarrassing nature of the crimes,' " we conclude that the court did not abuse its discretion inallowing the prosecutor to ask the child victim leading questions in this sexual abuse case(Cuttler, 270 AD2d at 655; seePeople v Ronchi, 11 AD3d 982 [2004], lv denied 4 NY3d 747 [2004]). Wefurther conclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Contrary to the further contention of defendant, he was not deprived of his right to effectiveassistance of counsel. Insofar as defendant's contention is based upon defense counsel's allegedlyinsufficient investigation, it involves matters dehors the record and is therefore not reviewable ondirect appeal (see People v Shegog,32 AD3d 1289, 1290 [2006], lv denied 7 NY3d 929 [2006]). The remainder ofdefendant's contention involves "simple disagreement[s] with [*2]strategies, tactics or the scope of possible cross-examination,weighed long after the trial" (People v Flores, 84 NY2d 184, 187 [1994]), and we thusconclude on the record before us that defense counsel provided the requisite meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We note our disapproval of the prosecutor's comments during summation that vouched forthe credibility of the victim and denigrated the defense (see People v Benedetto, 294AD2d 958, 959 [2002]). We conclude, however, that those comments and others challenged bydefendant were "not so egregious as to deprive defendant of his right to a fair trial," when viewedin the totality of the circumstances of this case (People v Ortiz-Castro, 12 AD3d 1071 [2004], lv denied 4NY3d 766 [2005]). Defendant failed to preserve for our review his contention that the court erredin determining, following an in camera review of the victim's psychological records, that he wasnot entitled to access to those records (see CPL 470.05 [2]), and we decline to exerciseour power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). The contention of defendant that the court erred in refusing to suppress hispost-Miranda statement to the police because it was involuntary is without merit. Therecord contains no evidence that, in making the statement, "defendant's will [was] overborne sothat the statement was not the product of essentially free and unconstrained choice" (People vRichardson, 202 AD2d 958, 958 [1994], lv denied 83 NY2d 914 [1994]). Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt, Lunn, Green andGorski, JJ.