| People v Russell |
| 2008 NY Slip Op 03848 [50 AD3d 1569] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jimmy DeanRussell, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered January30, 2006. The judgment convicted defendant, after a jury trial, of sexual abuse in the first degreeand endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury trial, ofsexual abuse in the first degree (Penal Law § 130.65 [3]) and endangering the welfare of achild (§ 260.10 [1]). We reject defendant's contention that County Court abused itsdiscretion in failing, sua sponte, to order a CPL article 730 examination. There is no indication inthe record that defendant could not understand the proceedings or assist in his own defense (see People v Taylor, 13 AD3d1168 [2004], lv denied 4 NY3d 836 [2005]; People v Graham, 272 AD2d479 [2000], lv denied 95 NY2d 865 [2000]; see generally People v Tortorici, 92NY2d 757, 765-766 [1999], cert denied 528 US 834 [1999]). By failing to object to thecourt's ultimate Sandoval ruling, defendant failed to preserve for our review hiscontention that the court's Sandoval ruling constitutes an abuse of discretion (see People v Jackson, 46 AD3d1408 [2007]; People v Kairis,37 AD3d 1070, 1070-1071 [2007], lv denied 9 NY3d 846 [2007]), and we decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Defendant also failed to preserve for our review his contentionthat the evidence is legally insufficient to establish that he had sexual contact with the victim, tosupport the conviction of either crime (see People v Gray, 86 NY2d 10, 19 [1995]). Inany event, his contention is without merit. The sworn testimony of the victim that defendanttouched her breast until she told him to stop doing so is legally sufficient to support theconviction of each crime (see People v Stickles, 267 AD2d 604, 605 [1999], lvdismissed 95 NY2d 839 [2000]; People v Danza, 127 AD2d 781 [1987], lvdenied 69 NY2d 879 [1987]). Also contrary to defendant's contention, the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Although the testimony of the victim was uncorroborated, the jury nevertheless wasentitled to credit that testimony over that of defendant (see generally id.).
Defendant failed to preserve for our review his further contention that he was deprived of afair trial by prosecutorial misconduct during the direct testimony of the victim and on summation(see People v Williams, 43 AD3d1336, 1337 [2007]; People vGates, 6 AD3d 1062, 1063 [2004], lv [*2]denied3 NY3d 659 [2004]). "In any event, '[w]e do not believe that the cumulative effect of the assertedinstances of misconduct on the part of the prosecutor prejudiced the verdict and depriveddefendant of a fair trial' and thus reversal is not required" (Gates, 6 AD3d at 1063; seePeople v Cohen, 302 AD2d 904, 905 [2003]). Based on the record before us, we concludethat defendant was not denied effective assistance of counsel (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Defendant failed to preserve for our review his contentionthat he was penalized at sentencing for asserting his right to a trial (see People v Hurley,75 NY2d 887 [1990]; People vIrrizarry, 37 AD3d 1082, 1083 [2007], lv denied 8 NY3d 946 [2007]) and, inany event, that contention is without merit (see Irrizarry, 37 AD3d at 1083; People v Smith, 21 AD3d 1277,1278 [2005], lv denied 7 NY3d 763 [2006]). Finally, the sentence is not unduly harsh orsevere. Present—Smith, J.P., Lunn, Fahey, Pine and Gorski, JJ.