| People v Nash |
| 2011 NY Slip Op 06148 [87 AD3d 757] |
| August 4, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Adam J. Nash,Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered October 8, 2008, upon a verdict convicting defendant of the crimes of rape in the thirddegree, sexual misconduct and endangering the welfare of a child.
In July 2007, the victim (born in 1992) reported to police that defendant, then 29 years oldand a family member, had engaged in sexual intercourse with her. Defendant was thereafterindicted for rape in the first degree, rape in the third degree, sexual misconduct and endangeringthe welfare of a child. Following a jury trial, defendant was convicted of rape in the third degree,sexual misconduct and endangering the welfare of a child and was subsequently sentenced to anaggregate prison term of four years, to be followed by five years of postrelease supervision.Defendant appeals.
Contrary to defendant's contention, the convictions are supported by the weight of theevidence. The victim testified at trial and described in detail an incident during which defendanthad engaged in sexual intercourse with her. Other evidence established that, at the time of theincident, the victim was 15 years old and defendant was 29 years old (see Penal Law§ 130.25 [2]). Defendant testified in his own defense and denied that he had ever engagedin sexual intercourse with the victim. Although no medical evidence was available to corroboratethe [*2]victim's testimony that sexual intercourse had occurred,the absence of such evidence was adequately explained (see People v Kelly, 270 AD2d511, 511-512 [2000], lv denied 95 NY2d 854 [2000]). Moreover, the fact that the juryfound defendant not guilty of rape in the first degree does not, as defendant urges, necessarilyindicate that the jury disbelieved the victim's account of the incident, particularly consideringthat, unlike rape in the third degree (see Penal Law § 130.25 [2]) or sexualmisconduct (see Penal Law § 130.20 [1]), rape in the first degree requires proof offorcible compulsion (see Penal Law § 130.35 [1]). After considering all of theproof, and according great deference to the jury's credibility determinations, it cannot be said thatthe verdict here was against the weight of the evidence (see People v Bleakley, 69 NY2d490, 495 [1987]; People v Wagner,72 AD3d 1196, 1197 [2010], lv denied 15 NY3d 779 [2010]).
Defendant next contends that County Court improperly permitted evidence of prior bad actsto be introduced at trial. The evidence in question was testimony that, two days before theincident, defendant had intentionally walked into a bathroom occupied by the victim, who wasclad only in her underwear, and testimony by an individual who claimed to have witnessedinappropriate physical interactions between defendant and the victim. It is not disputed that thisevidence was admissible as relevant to the non-propensity purpose of establishing the nature ofthe relationship between defendant and the victim and for establishing the context for the allegedrape (see People v Leeson, 12 NY3d823, 827 [2009]; People vDorm, 12 NY3d 16, 19 [2009]). Rather, defendant alleges that the court failed toadequately weigh the probative value of this evidence against its prejudicial effect. Although thecourt could have been more explicit in its ruling, a review of the record demonstrates that, duringthe combined Molineux-Sandoval inquiry, the court, defense counsel and the prosecutorwere all aware of the proper legal standard and, after considering separately each bad act soughtto be introduced by the People, the court excluded some bad acts after finding that the prejudicialeffect outweighed the probative value (see People v Tyrell, 82 AD3d 1352, 1355-1356 [2011]). Contraryto defendant's contention, the fact that limiting instructions were not given by the court to thejury at the time the contested evidence was introduced at trial is not reversible error in this case.Defendant did not request such instructions from the court and, under the circumstancespresented here, any prejudice that resulted from the introduction of the evidence was sufficientlymitigated when the court gave cautionary instructions to the jury at the close of trial, informing itthat the evidence had been introduced for a very limited purpose and was not permitted to beused by it as proof that defendant had committed the crimes with which he was charged (seePeople v Santarelli, 49 NY2d 241, 254 [1980]; People v Meseck, 52 AD3d 948, 950 [2008], lv denied 11NY3d 739 [2008]; cf. People v DeFayette, 16 AD3d 708, 709 [2005], lv denied 4 NY3d 885 [2005]; comparePeople v Greene, 306 AD2d 639, 642-643 [2003], lv denied 100 NY2d 594 [2003]).
Defendant's remaining contentions, including his claims that he was denied the effectiveassistance of counsel and the sentence imposed is harsh and excessive, are not persuasive.
Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.