| People v Donaldson |
| 2011 NY Slip Op 08054 [89 AD3d 1472] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin L.Donaldson, Sr., Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedMarch 1, 2010. The judgment convicted defendant, upon a jury verdict, of rape in the third degree andendangering 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 rape in thethird degree (Penal Law § 130.25 [2]) and endangering the welfare of a child (§ 260.10[1]). We reject defendant's contention that County Court erred in admitting in evidence recordedtelephone conversations between defendant and the victim. The People established a sufficientfoundation to admit the recordings in evidence through the testimony of the victim, who identified thevoices and recalled the conversations, and the testimony of the police lieutenant who witnessed theconversation and operated the recording equipment. Both witnesses testified that the recording wasaccurate and unaltered, and "[t]he People thus established that the offered evidence [was] genuine andthat there [had] been no tampering with it" (People v Myers, 87 AD3d 826, 828 [2011] [internal quotation marksomitted]; see generally People v Ely, 68 NY2d 520, 527-528 [1986]).
Defendant further contends that the evidence is legally insufficient to support the convictionbecause, inter alia, the People failed to present sufficient evidence to corroborate the victim's testimony.That contention is not preserved for our review inasmuch as defendant made only a general motion fora trial order of dismissal and failed to renew that motion after presenting evidence (see People v Kolupa, 13 NY3d 786,787 [2009]; People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]). In any event, defendant's contention lacks merit (see generally People v Bleakley, 69NY2d 490, 495 [1987]). There is no requirement of corroboration where, as here, the victim gavesworn testimony (see People v Lamphier, 302 AD2d 864, 865 [2003], lv denied 99NY2d 656 [2003]). Contrary to defendant's contention, he was not denied effective assistance ofcounsel based upon defense counsel's failure to renew that motion "because, in view of ourdetermination that the evidence is indeed legally sufficient, defendant has not established that such amotion 'would be meritorious upon appellate review' " (People v Carrasquillo, 71 AD3d 1591, 1591 [2010], lv denied15 NY3d 803 [2010]). Viewing the evidence in light of the elements of the [*2]crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude thatthe verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant preserved for our review his further contention with respect to only one of the allegedlyimproper comments made by the prosecutor during summation, and we conclude that the courtdispelled any prejudice arising from that comment when it sustained defendant's objection (see People v Rickard, 26 AD3d 800[2006], lv denied 7 NY3d 762 [2006]). In any event, we conclude that defendant's contentionwith respect to the remaining alleged instances of prosecutorial misconduct is without merit. Finally, wereject the contention of defendant that he was denied effective assistance of counsel based on defensecounsel's failure to object to those allegedly improper comments inasmuch as they did not constituteprosecutorial misconduct (see People vHill, 82 AD3d 1715, 1716 [2011], lv denied 17 NY3d 806 [2011]).Present—Scudder, P.J., Carni, Lindley, Sconiers and Green, JJ.