| People v Conklin |
| 2009 NY Slip Op 04760 [63 AD3d 1276] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JeremiahConklin, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered April 12,2007 in Albany County, upon a verdict convicting defendant of the crimes of rape in the thirddegree and endangering the welfare of a child.
Defendant, who was then 23 years old, allegedly had sexual intercourse with a 16 year oldwho was at his home to babysit his infant. He was charged in a four-count indictment, andeventually convicted by a jury of two of the charged counts, one count of rape in the third degreeand one count of endangering the welfare of a child. Supreme Court sentenced him to 1 to 3years in prison on the rape conviction and a concurrent one-year term for endangering thewelfare of a child. Defendant appeals.
Defendant argues that the verdict was against the weight of the evidence. Our weight of theevidence review entails, first, determining whether a different finding would have beenreasonable and, if so, we then "like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Romero, 7NY3d 633, 643 [2006] [internal quotation marks and citations omitted]; see People v Danielson, 9 NY3d342, 348 [2007]). Defendant's testimony at trial denying that the incident occurred suppliesample reason to conclude that a different verdict would not have been unreasonable. However,our independent weighing of the evidence does [*2]not convinceus that the verdict should be set aside. The inconsistencies in the victim's testimony do notundermine the verdict (see People vScanlon, 52 AD3d 1035, 1039 [2008], lv denied 11 NY3d 741 [2008]).Significantly, a rape kit examination conducted the day after the victim contended the sexualactivity had occurred resulted in the recovery of sperm that contained DNA matching defendant'sDNA. We find no reason to disregard the jury's refusal to accept defendant's efforts to discreditthe expert evidence regarding DNA (seePeople v Hardy, 57 AD3d 1100, 1102 [2008]; People v Vega, 225 AD2d 890,893 [1996], lv denied 88 NY2d 943 [1996]).
Next, we find no merit in defendant's contention that his statements to police (and onestatement overheard by police) should have been suppressed. The statements made duringconversations with police occurred when defendant was not in custody and he had notunequivocally invoked his right to counsel (see People v Odell, 26 AD3d 527, 528 [2006], lv denied 7NY3d 760 [2006]). Defendant's other statement was overheard by police in open court atarraignment, with counsel present, and was a brief—but unnecessary—elaborationin response to a yes-or-no question from the Town Justice. No viable legal ground has beenadvanced by defendant for suppressing this statement.
Defendant's argument that he did not receive the effective assistance of counsel is withoutmerit. In addition to getting one charge dismissed and an acquittal on another, counsel also madeappropriate motions, engaged in thorough cross-examination of the People's witnesses andpresented a coherent theory in defense of the charges. The record reveals that meaningfulrepresentation was afforded to defendant (see People v Benevento, 91 NY2d 708,712-713 [1998]; People v Scanlon, 52 AD3d at 1040).
The sentence imposed, which was less than the maximum, was well within Supreme Court'sdiscretion, and we discern neither an abuse of discretion nor extraordinary circumstancesmeriting a reduction thereof (see Peoplev Meiner, 20 AD3d 778, 778-779 [2005]).
Peters, J.P., Rose, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.