| People v Westbrooks |
| 2011 NY Slip Op 09428 [90 AD3d 1536] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mark A.Westbrooks, Appellant. |
—[*1] Leanne K. Moser, District Attorney, Lowville (John A. Cirando of counsel), forrespondent.
Appeal from a judgment of the Lewis County Court (Charles C. Merrell, J.), renderedDecember 4, 2009. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of rape inthe first degree (Penal Law § 130.35 [1]), defendant contends that the verdict is against theweight of the evidence. We reject that contention. This case turned largely upon the credibility ofthe victim, and it is well settled that "[r]esolution of issues of credibility, as well as the weight tobe accorded to the evidence presented, are primarily questions to be determined by the jury" (People v Witherspoon, 66 AD3d1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotation marksomitted]; see People v Erle, 83AD3d 1442 [2011], lv denied 17 NY3d 794 [2011]). Although there were variousinconsistencies in the victim's trial testimony, it cannot be said that her testimony was"manifestly untrue, physically impossible, contrary to experience, or self-contradictory" (People v Harris, 56 AD3d 1267,1268 [2008], lv denied 11 NY3d 925 [2009]; see People v Moore [appeal No. 2],78 AD3d 1658, 1659-1660 [2010]). Furthermore, we note that the People introduced evidenceestablishing that defendant fled to Ohio after the victim contacted the police, and such evidenceof defendant's flight was admissible as circumstantial evidence of his consciousness of guilt (see People v Zuhlke, 67 AD3d1341 [2009], lv denied 14 NY3d 774 [2010]).
We reject defendant's further contention that County Court erred in allowing the Peopleduring their direct case to elicit testimony that defendant slapped the victim while they werearguing two days before the rape occurred. Evidence of a defendant's prior abusive or controllingbehavior toward a victim is " 'admissible for the purpose of establishing the element of forciblecompulsion and the victim's delayed reporting' " (People v King, 56 AD3d 1193, 1194 [2008], lv denied 11NY3d 926 [2009]). That principle applies even where, as here, "the defense is not consensualsex, but that the rape never occurred and that the [victim's] allegation was a lie" (People vCook, 93 NY2d 840, 841 [1999]). Defendant failed to preserve for our review his contentionthat the court erred in failing to give a limiting instruction with regard to that evidence (see People v Wright, 5 AD3d 873,876 [2004], lv denied 3 NY3d 651 [2004]), as well as his contention that the court erredin admitting evidence that he was absent without leave from the United States Army [*2]following the rape (see CPL 470.05 [2]). We decline toexercise our power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Finally, defendant contends that he was deprived of a fair trial by alleged prosecutorialmisconduct on summation. Defendant did not object to most of the alleged improper commentsand thus failed to preserve his contention for our review with respect to those comments (seeCPL 470.05 [2]). In any event, we conclude that "[t]he claimed instances of prosecutorialmisconduct were not so egregious that defendant was deprived of a fair trial" (People vPlant, 138 AD2d 968 [1988], lv denied 71 NY2d 1031 [1988]).Present—Smith, J.P., Peradotto, Lindley, Green and Martoche, JJ.