| People v Raymond |
| 2009 NY Slip Op 02147 [60 AD3d 1388] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Elwood L.Raymond, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), renderedJanuary 21, 2008. The judgment convicted defendant, upon a jury verdict, of sexual abuse in thefirst degree and 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 verdict ofsexual abuse in the first degree (Penal Law § 130.65 [3]) and endangering the welfare of achild (§ 260.10 [1]). Defendant failed to preserve for our review his contention thatCounty Court erred in permitting the six-year-old victim to give unsworn testimony (seePeople v Bitting, 224 AD2d 1012 [1996], lv denied 88 NY2d 845 [1996]). In anyevent, the record establishes that the victim "possesse[d] sufficient intelligence and capacity tojustify" her unsworn testimony (CPL 60.20 [2]; see People v Wacht, 261 AD2d 932[1999]; Bitting, 224 AD2d 1012 [1996]). Defendant also failed to preserve for ourreview his challenge to the court's charge on corroboration and his contention that the victim'sunsworn testimony was not corroborated (see CPL 470.05 [2]). In any event, weconclude that the court's charge was proper and that the victim's unsworn testimony wassufficiently corroborated by "evidence tending to establish the crime and connecting defendantwith its commission" (People v Groff, 71 NY2d 101, 104 [1987]; see People vPetrie, 3 AD3d 665, 667 [2004]), including defendant's statement to the police(Petrie, 3 AD3d at 667-668; People v Thomas, 267 AD2d 949, 950 [1999], lvdenied 95 NY2d 805 [2000]; People v Pullman, 234 AD2d 955 [1996], lvdenied 89 NY2d 1099 [1997]).
Defendant failed to renew his motion for a trial order of dismissal after presenting evidenceand thus failed to preserve for our review his contention that the evidence is legally insufficient(see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001];People v Diefenbacher, 21 AD3d 1293, 1294 [2005], lv denied 6 NY3d 775[2006]). Viewing the evidence in light of the elements of the crimes as charged to the jury(see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Contrary to defendant's contention, the unsworn testimony of the victim was notincredible as a matter of law (see People v Johnson, 56 AD3d 1172, 1173 [2008], lvdenied 11 NY3d 926 [2009]; People v Black, 38 AD3d 1283, 1285 [2007], lvdenied 8 NY3d 982 [2007]), and it cannot be said that the jury failed to give her testimonythe weight it should be accorded (see [*2]generallyBleakley, 69 NY2d at 495). We reject the further contention of defendant that he was deniedeffective assistance of counsel. Rather, we conclude that the evidence, the law and thecircumstances of this case, viewed in totality and as of the time of the representation, establishthat defendant received meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]). The sentence is not unduly harsh or severe. Defendant failed to preservehis remaining contentions for our review (see CPL 470.05 [2]), and we decline toexercise our power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Present—Hurlbutt, J.P., Martoche, Centra, Peradotto andGorski, JJ.