| People v Comfort |
| 2009 NY Slip Op 02026 [60 AD3d 1298] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James E.Comfort, Appellant. (Appeal No. 1.) |
—[*1] James E. Comfort, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedSeptember 23, 2003. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree, rape in the third degree, attempted sodomy in the first degree, attempted sodomy in thethird degree, assault in the second degree, sexual abuse in the third degree (three counts) andendangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified on the factsby reversing those parts convicting defendant of sexual abuse in the third degree under counts 6and 9 of the indictment and dismissing those counts of the indictment and as modified thejudgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a jury trial of various crimes, including rape in the first degree (Penal Law §130.35 [1]) and attempted sodomy in the first degree (§ 110.00, former § 130.50[1]). The conviction stems from allegations that defendant forcibly raped a 16-year-old girl andattempted to sodomize her, and sexually abused the girl and another young girl who was herfriend. In appeal No. 2, defendant appeals with permission of a Justice of this Court from anorder denying his CPL 440.10 motion to vacate the judgment of conviction in appeal No. 1.
Contrary to the contention of defendant in appeal No. 1, he was not denied due process or hisright to a fair trial based on County Court's denial of his repeated requests for an adjournment ofthe trial. The court granted defendant's "demand[ ]" for a new attorney approximately two weeksbefore trial was scheduled to commence, and defense counsel accepted the assignment withknowledge of the time constraints. We thus conclude that the court did not abuse its discretion inrefusing to grant the requested adjournments (see People v Arroyave, 49 NY2d 264, 272[1980]; People v Povio, 284 AD2d 1011 [2001], lv denied 96 NY2d 923 [2001]).
Defendant further contends in both appeals that he was denied due process and his right[*2]to a fair trial by alleged Brady and Rosarioviolations. We note at the outset that defendant's contentions in appeal No. 2 with respect to thealleged Brady and Rosario violations are not properly before us because theycould have been raised, and indeed have been raised, on defendant's direct appeal (seeCPL 440.10 [2] [b]). Even assuming, arguendo, that the prosecutor delayed in providingdefendant with Brady material, we conclude that reversal is not warranted inasmuch asdefendant received the material " 'in time for its effective use at trial' " (People v Reese, 23 AD3d 1034,1036 [2005], lv denied 6 NY3d 779 [2006] [emphasis omitted]; see People vCortijo, 70 NY2d 868, 870 [1987]). Although the prosecutor committed a Rosarioviolation by failing to disclose a police officer's handwritten notes until after the directexamination of the People's second witness, that violation does not warrant reversal under thecircumstances of this case. Defendant had the official report of the police officer, and defendantfailed to establish that he was "substantially prejudiced by the delay" in the disclosure of thehandwritten notes (People vWatkins, 17 AD3d 1083, 1084 [2005], lv denied 5 NY3d 771 [2005]).
Defendant concedes that he failed to preserve for our review his contention in appeal No. 1that he was denied due process and the right to a fair trial "by the application of" CPL 270.20 (2)(see generally People v Baumann &Sons Buses, Inc., 6 NY3d 404, 408 [2006], rearg denied 7 NY3d 742 [2006]),and we decline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Even assuming, arguendo, that defendantpreserved for our review his further contention in appeal No. 1 that he was denied the right topresent a defense, we conclude that his contention lacks merit. "Trial courts have broaddiscretion and wide latitude to limit cross-examination on collateral matters designed to impeachthe victim's credibility" (People v Love, 307 AD2d 528, 532 [2003], lv denied100 NY2d 643 [2003]; see generallyPeople v Corby, 6 NY3d 231, 234-235 [2005]), and "[t]he record does not support thecontention of defendant that the court violated his fundamental right to present a defense byrefusing to allow him to call . . . witness[es] in his own behalf" (People v Bradley, 17 AD3d 1050,1052 [2005], lv denied 5 NY3d 786 [2005]).
Defendant further contends in appeal No. 1 that he was denied due process and his right to afair trial by numerous instances of prosecutorial misconduct. Defendant failed to object to mostof the challenged comments or acts and thus has failed to preserve for our review his contentionwith respect to those challenged comments or acts (see CPL 470.05 [2]). In any event,we conclude that the prosecutor's alleged misconduct was not so egregious as to have denieddefendant due process or the right to a fair trial (see generally People v Mott, 94 AD2d415, 418-421 [1983]).
Defendant contends in both appeals that the court erred in admitting Molineuxevidence. That contention with respect to appeal No. 2, as well as his remaining contentions inappeal No. 2, are not properly before us (see CPL 440.10 [2] [b]). With respect to appealNo. 1, we conclude that defendant's Molineux contention is not preserved for our review(see People v Ward, 10 AD3d805, 806 [2004], lv denied 4 NY3d 768 [2005]; People v Hood, 288 AD2d923, 924 [2001], lv denied 97 NY2d 705 [2001]). In any event, we conclude that theevidence was properly admitted because it tended to establish defendant's identity as the manwho raped the victim (see generally People v Alvino, 71 NY2d 233, 241-242 [1987]),and the probative value of the evidence was not outweighed by its prejudicial effect (seePeople v Hudy, 73 NY2d 40, 55 [1988]; Alvino, 71 NY2d at 242).
Contrary to the further contention of defendant, he received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]). Viewing the evidence in lightof the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence, with the exception of counts 6 and 9(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We therefore modify thejudgment in appeal No. 1 accordingly. Defense counsel stated that he "d[id] not have anyobjection" to the [*3]introduction of a videotape depicting 40seconds of the gynecological examination of the victim, and defendant thus failed to preserve forour review his contention that the videotape was improperly admitted in evidence (see Peoplev Russell, 71 NY2d 1016, 1017 [1988], rearg dismissed 79 NY2d 975 [1992]). Wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Finally, we conclude that the sentence is not undulyharsh or severe. Present—Martoche, J.P., Fahey, Green and Pine, JJ.