| People v King |
| 2008 NY Slip Op 08855 [56 AD3d 1193] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony L.King, Appellant. |
—[*1] Anthony L. King, defendant appellant pro se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), renderedApril 27, 2006. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree, sexual abuse in the first degree, assault in the third degree and menacing in the thirddegree.
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,rape in the first degree (Penal Law § 130.35 [1]), defendant contends in his main brief andpro se supplemental brief that the verdict is against the weight of the evidence because thetestimony of the victim was incredible as a matter of law. We reject that contention (see People v Ptak, 37 AD3d 1081[2007], lv denied 8 NY3d 949 [2007]; see generally People v Danielson, 9 NY3d 342, 348-349 [2007];People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant further contends in his mainbrief that he was denied effective assistance of counsel. To the extent that defendant's contentioninvolves matters outside the record on appeal, it is properly raised by way of a motion pursuant toCPL 440.10 (see People vMcKnight, 55 AD3d 1315 [2008]). We otherwise conclude on the record before us thatdefendant received meaningful representation (see generally People v Baldi, 54 NY2d137, 147 [1981]). Defendant failed to meet his burden of establishing the absence of strategic orother legitimate explanations for the alleged deficiencies of his attorneys in representing him(see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Flores, 84NY2d 184, 186-187 [1994]; see generally Baldi, 54 NY2d at 147). Also contrary to thecontention of defendant in his main brief, we conclude that County Court properly admittedevidence of his controlling behavior toward the victim. Evidence of that behavior is "admissiblefor the purpose of establishing the element of forcible compulsion and the victim's delayedreporting" (People v Bennett, 52AD3d 1185, 1187 [2008], lv denied 11 NY3d 734 [2008]; see People vGreene, 306 AD2d 639, 642 [2003], lv denied 100 NY2d 594 [2003]), and theprejudicial effect of the evidence of that behavior is outweighed by its probative value (seePeople v Ventimiglia, 52 NY2d 350, 359-360 [1981]). The sentence is not unduly harsh orsevere.[*2]
Defendant contends in his pro se supplemental brief thatreversal is required based on the court's failure to provide defendant with notice of the jury notespursuant to CPL 310.30. We conclude that defendant failed to preserve his contention withrespect to the sixth jury note because the court read the contents of that note in open court, anddefendant failed to object or to suggest a response (see People v Starling, 85 NY2d 509,516 [1995]). We decline to exercise our power to review defendant's contention concerning thesixth jury note as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).With respect to the jury notes requesting exhibits, we conclude that the court properly forwardedthe requested exhibits without notice to defendant inasmuch as the record establishes thatdefendant waived his right to be present for the reading of those notes (see People v Knudsen, 34 AD3d496, 497 [2006]; People v Porteous, 193 AD2d 631 [1993], lv denied 82NY2d 758, 807 [1993]). We further conclude that defendant received meaningful notice of theremainder of the substantive jury notes (see generally People v O'Rama, 78 NY2d 270,276-278 [1991]).
Finally, we have considered the remaining contention of defendant in his pro se supplementalbrief and conclude that it is without merit. Present—Hurlbutt, J.P., Centra, Fahey, Pine andGorski, JJ.