| People v McAvoy |
| 2010 NY Slip Op 01262 [70 AD3d 1467] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joseph R.McAvoy, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedDecember 18, 2006. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the second degree (two counts), endangering the welfare of a child(three counts), unlawfully dealing with a child in the first degree, and sexual abuse in the seconddegree (two counts).
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 course of sexual conduct against a child in the second degree (Penal Law§ 130.80 [1] [a], [b]) and sexual abuse in the second degree (§ 130.60 [2]), threecounts of endangering the welfare of a child (§ 260.10 [1]), and one count of unlawfullydealing with a child in the first degree (§ 260.20 [2]). Defendant contends that CountyCourt erred in refusing to suppress his statements to the police. We reject that contention. "Thecredibility determinations of the suppression court receive deference and will not be disturbed ifsupported by the record" (People vButton, 56 AD3d 1043, 1044 [2008], lv dismissed 12 NY3d 781 [2009]; seePeople v Prochilo, 41 NY2d 759, 761 [1977]; People v Timmons, 54 AD3d 883, 885 [2008], lv denied12 NY3d 822 [2009]). Here, the evidence at the suppression hearing established that defendantvoluntarily accompanied a police officer to the police station and waived his Mirandarights, that the questioning lasted only 30 minutes, and that defendant received no promisesand was not threatened in any way (see Button, 56 AD3d at 1044; People v Pennick, 2 AD3d 1427,1428 [2003], lv denied 1 NY3d 632 [2004]; People v Kemp, 266 AD2d 887,887-888 [1999], lv denied 94 NY2d 921 [2000]).
We also reject the contention of defendant that the court erred in denying his motion to severthe counts of the indictment. The offenses were properly joined because they involved incidentsin which proof with respect to one crime would be material and admissible as evidence in chiefin a trial with respect to the other crimes, and they all involved the same or similar statutoryprovisions (see CPL 200.20 [2] [b], [c]; People v Comfort, 31 AD3d 1110, 1112 [2006], lv denied7 NY3d 847 [2006]; People vCassidy, 16 AD3d 1079, 1081 [2005], lv denied 5 NY3d 760 [2005]).Defendant "failed to meet his burden of submitting sufficient evidence of prejudice from thejoinder to establish good cause to sever" (Cassidy, [*2]16AD3d at 1081; see CPL 200.20 [3]; People v Vasquez, 19 AD3d 1103, 1103-1104 [2005], lvdenied 5 NY3d 811 [2005]).
In his motion for a trial order of dismissal, defendant failed to raise the majority of thespecific challenges now raised on appeal and thus failed to preserve for our review the majorityof his challenges to the legal sufficiency of the evidence (see People v Gray, 86 NY2d10, 19 [1995]). In any event, all of his challenges lack merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of the elements of thecrimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict isnot against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).Contrary to defendant's contention, minor inconsistencies in the testimony of the People'switnesses do not render the verdict against the weight of the evidence (see People v Hawkins, 41 AD3d1314, 1315 [2007], lv denied 9 NY3d 923 [2007]; People v Lauderdale, 13 AD3d1173 [2004]).
Defendant further contends that he was deprived of a fair trial based on improper remarks bythe court and by prosecutorial misconduct on summation. Defendant failed to preserve hiscontention for our review with respect to the majority of the instances of alleged misconduct(see CPL 470.05 [2]), and we decline to exercise our power to address those instances asa matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). In any event,even had defendant preserved all of those instances for our review, we would neverthelessconclude that reversal is not warranted. While some of the remarks were arguably improper, theywere not so egregious to deprive defendant of a fair trial (see generally People vHightower, 286 AD2d 913, 915 [2001], lv denied 97 NY2d 656 [2001]).Furthermore, with respect to the prosecutor's alleged misconduct on summation, the courtalleviated any prejudice arising therefrom "by instructing the jury that the comments andsummations of the prosecutor and defense counsel do not constitute evidence" (People v Williams, 28 AD3d1059, 1061 [2006], affd 8 NY3d 854 [2007]).
Contrary to the further contentions of defendant, he received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]), and the sentence is not undulyharsh or severe. Present—Scudder, P.J., Centra, Fahey, Carni and Pine, JJ.