| People v Fisher |
| 2010 NY Slip Op 08288 [78 AD3d 1605] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Aaron RichardFisher, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.), renderedNovember 9, 2006. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the first degree, course of sexual conduct against a child in the second degreeand endangering the welfare of a child.
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 of, inter alia,course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b]) andcourse of sexual conduct against a child in the second degree (§ 130.80 [1] [a]). Defendantfailed to preserve for our review his contention that he was deprived of a fair trial by prosecutorialmisconduct during summation (see People vSmith, 32 AD3d 1291, 1292 [2006], lv denied 8 NY3d 849 [2007]) and, in anyevent, that contention is without merit. "[T]he prosecutor's closing statement must be evaluated in lightof the defense summation, which put into issue the complainants' character and credibility and justifiedthe People's response" (People v Halm, 81 NY2d 819, 821 [1993]). The majority of theprosecutor's comments on summation were within " 'the broad bounds of rhetorical commentpermissible in closing argument' " (People vWilliams, 28 AD3d 1059, 1061 [2006], affd 8 NY3d 854 [2007], quotingPeople v Galloway, 54 NY2d 396, 399 [1981]), and they were a fair response to defensecounsel's summation (see People vFiggins, 72 AD3d 1599 [2010]; People v Diggs, 24 AD3d 1261 [2005], lv denied 6 NY3d 812[2006]; People v Melendez, 11 AD3d983 [2004], lv denied 4 NY3d 888 [2005]). Even assuming, arguendo, that some of theprosecutor's comments were beyond those bounds, we conclude that they were not so egregious as todeprive defendant of a fair trial (see Figgins, 72 AD3d 1599 [2010]; People v Sweney, 55 AD3d 1350,1351 [2008], lv denied 11 NY3d 901 [2008]; People v Crawford, 299 AD2d 848[2002], lv denied 99 NY2d 581, 653 [2003]). Defendant also failed to preserve for ourreview his contention that the prosecutor improperly asked him on cross-examination whetherprosecution witnesses were lying (cf. People v Paul, 212 AD2d 1020, 1021 [1995], lvdenied 85 NY2d 912 [1995]; People v Jarrells, 190 AD2d 120, 125-126 [1993]). In anyevent, we conclude that defendant was not thereby denied a fair trial (see People v Gonzalez,206 AD2d 946 [1994], lv denied 84 NY2d 867 [1994]).[*2]
Defendant further contends that the evidence is legallyinsufficient to support the conviction of course of sexual conduct against a child in the second degreeinasmuch as the People failed to establish that the alleged sexual acts occurred "over a period of timenot less than three months in duration" pursuant to Penal Law § 130.80 (1). Defendant failed topreserve that contention for our review (see People v Gray, 86 NY2d 10, 19 [1995]; People v Mills, 63 AD3d 1717 [2009],lv denied 13 NY3d 861 [2009]) and, in any event, that contention is without merit. Viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that there is a valid line of reasoning and permissible inferences from which arational jury could conclude that the sexual conduct occurred for the requisite duration (see Peoplev Paramore, 288 AD2d 53 [2001], lv denied 97 NY2d 759 [2002]; see also People v Johnson, 24 AD3d967, 968 [2005], lv denied 6 NY3d 814 [2006]; see generally People vBleakley, 69 NY2d 490, 495 [1987]). Defendant also failed to preserve for our review hiscontention that the evidence is legally insufficient to support the remaining counts (see Gray, 86NY2d at 19) and, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
We reject the further contention of defendant that he was denied effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]). "With respect to defense counsel'sfailure to object to certain . . . testimony . . . [and alleged prosecutorialmisconduct on summation], defendant failed to demonstrate the absence of strategic or other legitimateexplanations for [defense] counsel's alleged shortcomings" (People v Elliott, 73 AD3d 1444, 1445 [2010], lv denied 15NY3d 773 [2010] [internal quotation marks omitted]; see People v Taylor, 1 NY3d 174, 176-178 [2003]). Further,"[d]efense counsel's failure to make a motion for a trial order of dismissal on the ground raised onappeal does not constitute ineffective assistance of counsel because that motion would have had nochance of success" (People v Hunter, 70AD3d 1388, 1389 [2010], lv denied 15 NY3d 751 [2010]; see generally People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Defendant's contention that defensecounsel was ineffective in failing to present a proper foundation to permit the introduction of certainevidence involves matters outside the record on appeal and thus is properly raised by way of a motionpursuant to CPL article 440 (see People vBarnes, 56 AD3d 1171 [2008]; People v Jenkins, 25 AD3d 444, 445-446 [2006], lv denied 6NY3d 834 [2006]). Present—Smith, J.P., Fahey, Lindley, Sconiers and Gorski, JJ.