| People v Shofkom |
| 2009 NY Slip Op 04766 [63 AD3d 1286] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Delbert L.Shofkom, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Chenango County (Sullivan,J.), rendered December 3, 2007, upon a verdict convicting defendant of the crimes of attemptedrape in the first degree, criminal sexual act in the second degree, criminal sexual act in the thirddegree (two counts) and endangering the welfare of a child.
In October 2006, defendant was charged with attempted rape in the first degree, criminalsexual act in the second degree, two counts of criminal sexual act in the third degree andendangering the welfare of a child after it was discovered that, between 2002 and 2005, he hadengaged in a series of sexual acts with a female relative (born in 1989). Following a hearing,County Court denied defendant's motion to preclude the People from offering at trial evidence ofuncharged incidents of alleged abuse. After a jury trial, defendant was convicted on all thecounts as charged and sentenced to an aggregate prison term of seven years, with five years ofpostrelease supervision. Defendant appeals.
According to defendant, the convictions are against the weight of the evidence because thevictim had motive to fabricate the allegations and her testimony was inconsistent regarding thefrequency and timing of the incidents. As a different verdict would not have been unreasonable,viewing the evidence in a neutral light, we must " 'weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be [*2]drawn from the testimony' " (People v Bleakley, 69 NY2d490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]).The divergent testimony of defendant and the victim presented a credibility issue for the jury toresolve and the jury obviously credited the victim's version of events (see People v Colvin, 37 AD3d856, 857 [2007], lv denied 8 NY3d 944 [2007]). The victim provided lengthy anddetailed testimony, explaining that defendant demanded that she engage in sexual acts with himas repayment for gifts he had given her or for favors he had done for her. According to thevictim, the sexual acts demanded by defendant, who was significantly larger and stronger thanthe victim, gradually escalated over the years, beginning with inappropriate touching andculminating in the attempted rape. Contrary to defendant's contention, the few minorinconsistencies in the victim's testimony did not render it incredible as a matter of law (seePeople v Wright, 214 AD2d 759, 761-762 [1995], lv denied 86 NY2d 805 [1995]).Accordingly, it cannot be said that the convictions are not supported by the weight of thecredible evidence offered at trial.
Next, we find no error in County Court's ruling that allowed the People to present evidenceof uncharged acts of sexual misconduct allegedly committed by defendant against the victim.Such evidence, although not admissible to establish defendant's propensity to commit the crimescharged, was nevertheless admissible to develop the necessary background and complete thevictim's narrative (see People vTarver, 2 AD3d 968, 969 [2003]; People v Watson, 281 AD2d 691, 694 [2001],lv denied 96 NY2d 925 [2001]). The evidence of the uncharged encounters demonstratedthe escalating nature of the sexual abuse and revealed the manipulative and abusive setting inwhich the victim lived with defendant. The evidence was additionally relevant to the element offorcible compulsion contained in the attempted rape charge (see People v Cook, 93NY2d 840, 841 [1999]; People v Rogner, 265 AD2d 688, 689 [1999]). Considering thatthe court several times provided the jury with appropriate limiting instructions, and because theprobative value of the evidence outweighed the potential prejudice to defendant (see People vMolineux, 168 NY 264, 293 [1901]; People v Tarver, 2 AD3d at 969), we cannotsay that County Court erred by permitting the testimony.
Finally, defendant's claim that certain counts of the indictment were rendered duplicitous bythe victim's testimony was not preserved for this Court's review by an objection at trial(see CPL 470.05 [2]; People vTomlinson, 53 AD3d 798, 799 [2008], lv denied 11 NY3d 835 [2008]) and, inany event, is without merit. Considering that such claim is without merit, we reject the relatedcontention that defendant was deprived of the effective assistance of counsel based on trialcounsel's failure to enter such objection.
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.