| People v Bean |
| 2009 NY Slip Op 06947 [66 AD3d 1386] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Terry L.Bean, Appellant. |
—[*1] Edward M. Sharkey, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedDecember 10, 2007. The judgment convicted defendant, upon a jury verdict, of attempted rape inthe first degree (two counts), endangering the welfare of a child (two counts), and unlawfullydealing with a child in the first degree.
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 oftwo counts each of attempted rape in the first degree (Penal Law §§ 110.00, 130.35[2], [4]) and endangering the welfare of a child (§ 260.10 [1]), and one count of unlawfullydealing with a child in the first degree (§ 260.20 [2]). Contrary to the contention ofdefendant, County Court properly denied his motion, upon renewal, seeking to dismiss theindictment on the ground that the grand jury proceeding was defective. Defendant soughtdismissal based on alleged prosecutorial misconduct, contending that "the integrity [of the grandjury proceeding was] impaired" and that he was thereby prejudiced (CPL 210.35 [5]). Dismissalof the indictment on that ground is an "exceptional remedy" that is not warranted in this case(People v Darby, 75 NY2d 449, 455 [1990]). Upon our review of the grand juryproceeding, we conclude that "[t]here is no indication that the People knowingly or deliberatelypresented false testimony before the [g]rand [j]ury, and thus there is no basis for finding that theintegrity of the [g]rand [j]ury proceeding was impaired . . . by the alleged falsetestimony" (People v Klosin, 281 AD2d 951, 951 [2001], lv denied 96 NY2d 864[2001]).
Defendant failed to renew his motion for a trial order of dismissal after presenting evidenceand thus failed to preserve for our review his challenge to the legal sufficiency of the evidence(see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001];People v Griffin, 41 AD3d1285, 1286 [2007], lv denied 9 NY3d 923 [2007], reconsideration denied 9NY3d 990 [2007]). In any event, that challenge lacks merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]) and, viewing the evidence in light of the elements ofthe crimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant further contends that the court erred in precluding the testimony of his expertwitness who, according to defendant, would have provided general testimony concerning police[*2]interrogation techniques and false confessions. The court didnot abuse its discretion in determining that the expert's testimony would not be relevant in viewof the facts of this case (see generallyPeople v Young, 7 NY3d 40, 44-45 [2006]; People v Lee, 96 NY2d 157, 162[2001]). The sentence is not unduly harsh or severe. We have considered defendant's remainingcontention and conclude that it is without merit. We note, however, that the certificate ofconviction incorrectly recites that defendant was convicted of one of the two counts of attemptedrape in the first degree under Penal Law §§ 110.00 and 130.35 (1), and it musttherefore be amended to reflect that he was convicted under Penal Law §§ 110.00and 130.35 (2) (see People vSaxton, 32 AD3d 1286 [2006]; see also People v Benson, 265 AD2d 814, 816[1999], lv denied 94 NY2d 860 [1999], cert denied 529 US 1076 [2000]).Present—Smith, J.P., Centra, Fahey, Carni and Pine, JJ.