| People v Witherspoon |
| 2009 NY Slip Op 07031 [66 AD3d 1456] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David A.Witherspoon, Appellant. (Appeal No. 1.) |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Joan S. Kohout, A.J.), renderedJuly 11, 2006. The judgment convicted defendant, upon a jury verdict, of rape in the first degree,assault in the second degree and unlawfully dealing with a child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a jury trial of, inter alia, rape in the first degree (Penal Law § 130.35 [2]) and, inappeal No. 2, he appeals from a judgment convicting him following the same trial of criminalsale of a controlled substance in the fifth degree (§ 220.31).
Viewing the evidence in light of the elements of the crime of rape in the first degree ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence with respect to that crime (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The jury was entitled to infer that defendant engaged in nonconsensualsexual intercourse with the victim, in light of the evidence that the victim was physically unableto respond to defendant's advances after consuming a drink that had been laced with aprescription sleeping pill (see People vSmith, 16 AD3d 1033, 1034 [2005], affd 6 NY3d 827 [2006], certdenied 548 US 905 [2006]; Peoplev Williams, 40 AD3d 1364, 1366 [2007], lv denied 9 NY3d 927 [2007]). " '[R]esolution of issues of credibility, as well as the weight to be accorded to the evidencepresented, are primarily questions to be determined by the jury' " (People v Sorrentino, 12 AD3d1197, 1197 [2004], lv denied 4 NY3d 748 [2004]), and the testimony of the victimwith respect to the issue of penetration " 'was not so inconsistent or unbelievable as to render itincredible as a matter of law' " (Peoplev Johnson, 56 AD3d 1172, 1173 [2008], lv denied 11 NY3d 926 [2009]). Thefurther contention of defendant that the evidence before the grand jury was legally insufficientwith respect to the rape count "is not reviewable upon an appeal from an ensuing judgment ofconviction based upon legally sufficient trial evidence" (CPL 210.30 [6]; see People v Prindle, 63 AD3d1597 [2009]). Likewise, there is no merit to defendant's contention that the date of thecrimes specified in the indictments was not sufficiently specific (see People v Furlong, 4 AD3d839, 840-841 [2004], lv denied 2 NY3d 739 [2004]; see generally People vKeindl, 68 NY2d 410, 416-417 [1986]).
We further conclude that there is no merit to the contention of defendant that he was denied[*2]a fair trial by prosecutorial misconduct. Defendant's generalobjection to a comment of the prosecutor on summation is insufficient to preserve for our reviewdefendant's present contention with respect to that comment (see People v Tonge, 93NY2d 838 [1999]; People v Beggs,19 AD3d 1150 [2005], lv denied 5 NY3d 803 [2005]), and we decline to exerciseour power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). With respect to defendant's contention that concerns an outburst in whichthe prosecutor threw a water bottle during defense counsel's cross-examination of the victim, wenote that defense counsel was also at fault for the incident (see generally People vEdwards, 134 AD2d 609 [1987]), and we conclude in any event that County Court'sinstruction to the jury to disregard the incident was sufficient to alleviate any prejudice todefendant (see generally People vYoung, 55 AD3d 1234, 1236 [2008], lv denied 11 NY3d 901 [2008]). There isno support in the record for defendant's contention that the prosecutor had coached the victim togive certain responses during defense counsel's cross-examination of her, in order to impede thecross-examination (see generally People v White, 168 AD2d 962, 963 [1990], lvdenied 77 NY2d 968 [1991]). Finally, we conclude that defendant was not denied a fair trialby prosecutorial misconduct based on a heated exchange between the prosecutor and defensecounsel while defense counsel was cross-examining a witness, particularly in view of the factthat defense counsel was an equal participant in the exchange (see generally Edwards,134 AD2d 609 [1987]).
Contrary to defendant's further contention, the court properly refused to suppress a statementmade by defendant to the police during the search of his home. Any alleged deficiency in theCPL 710.30 notice is of no moment inasmuch as defendant sought to suppress the statement andthe court, following a Huntley hearing, determined that it was admissible (seeCPL 710.30 [3]; People v Kirkland, 89 NY2d 903, 904-905 [1996]; People vRivera, 306 AD2d 186, 187 [2003], lv denied 100 NY2d 598 [2003]). We perceiveno basis to disturb the court's resolution of credibility issues at that hearing (see generallyPeople v Prochilo, 41 NY2d 759, 761 [1977]), and we reject the contention of defendant thathe was in custody when he made the statement and thus that his statement should have beensuppressed because he had not received his Miranda warnings (see generally Peoplev Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]; People vLavere, 236 AD2d 809 [1997], lv denied 90 NY2d 860 [1997]). Inasmuch as thestatement was spontaneous, it cannot be said that it was the product of interrogation (see People v Jacobson, 60 AD3d1326, 1327 [2009], lv denied 12 NY3d 916 [2009]), or that it was obtained inviolation of defendant's right to counsel (see People v Fortino, 61 AD3d 1410, 1411 [2009]; People vAdams, 244 AD2d 897, 898-899 [1997], lv denied 91 NY2d 887, 888 [1998]).
We also reject the contention of defendant that the court erred in admitting in evidence abuccal swab collected from him, sample evidence collected from an open bottle found near thescene of the crimes, and results of the testing of that sample evidence. Defendant's challenges tothe admission in evidence of the buccal swab and the results of the testing of the sampleevidence are not preserved for our review (see generally People v Caswell, 56 AD3d 1300, 1303 [2008],lv denied 11 NY3d 923, reconsideration denied 12 NY3d 781 [2009]; Peoplev Cooper, 147 AD2d 926 [1989], lv denied 74 NY2d 738 [1989]), and we decline toexercise our power to review those challenges as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Moreover, there is no merit to defendant's contention that thecourt erred in admitting the sample evidence itself. " 'Where, as here, the circumstances providereasonable assurances of the identity and unchanged condition of the evidence, any deficienciesin the chain of custody go to the weight of the evidence and not its admissibility' "(Caswell, 56 AD3d at 1303; seePeople v Hawkins, 11 NY3d 484, 494 [2008]). Present—Martoche, J.P., Centra,Fahey, Peradotto and Green, JJ.