| People v Coapman |
| 2011 NY Slip Op 09740 [90 AD3d 1681] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Maxwell S.Coapman, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Michael F. McKeon, A.J.), renderedMay 20, 2010. The judgment convicted defendant, upon a jury verdict, of criminal sexual act inthe first degree (two counts), sexual abuse in the second degree (eight counts), criminal sexualact in the second degree (seven counts), rape in the second degree (two counts) and endangeringthe welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him after a jury trial of, inter alia, twocounts of criminal sexual act in the first degree (Penal Law § 130.50 [4]) and two counts ofrape in the second degree (§ 130.30 [1]), defendant contends that he was deprived of theright to fair notice of the charges against him because the dates in the indictment on which theoffenses allegedly occurred were overbroad. We reject that contention. "In view of the age of thevictim and the date on which she reported the crimes, we conclude that the one-month andtwo-month periods specified in the indictment provided defendant with adequate notice of thecharges against him to enable him to prepare a defense" (People v Franks, 35 AD3d 1286, 1286 [2006], lv denied 8NY3d 922 [2007]; see generally People v Morris, 61 NY2d 290, 295-296 [1984]).
We reject defendant's further contention that County Court abused its discretion in denyinghis request for an adjournment to secure the attendance of a defense witness. "It is incumbent ona defendant seeking an adjournment to procure a witness to show that the witness's testimonywould be material, noncumulative and favorable to the defense" (People v Softic, 17 AD3d 1075,1076 [2005], lv denied 5 NY3d 794 [2005]; see People v Acevedo, 295 AD2d141 [2002], lv denied 98 NY2d 766 [2002]). While defendant established that thetestimony of the proposed witness would have been favorable to the defense, he failed toestablish that the testimony was material. Furthermore, the proposed witness was not scheduledto leave the country until the third day of trial, and the court offered to permit the witness totestify out of order or by video. Because the court afforded defendant the opportunity to call thewitness to testify before the witness's scheduled departure, we conclude that there has been noshowing of prejudice such that it can be said that the court abused its discretion in denyingdefendant's request for an adjournment (see People v Peterkin, 81 AD3d 1358, 1360 [2011], lvdenied 17 NY3d 799 [2011]).[*2]
Contrary to defendant's contention, the court did not errin admitting in evidence a letter that defendant wrote to his adopted daughter discussing thealleged sexual abuse of the victim. There were "sufficient assurances of the identity andunchanged condition of the evidence . . . , and thus any alleged gaps in the chain ofcustody went to the weight of the evidence, not its admissibility" (People v Kennedy, 78 AD3d 1477,1478 [2010], lv denied 16 NY3d 798 [2011]; see People v Hawkins, 11 NY3d 484, 494 [2008]). Defendantcontends on appeal that the court erred in permitting an expert to testify with respect to childsexual abuse accommodation syndrome because the expert supervised the victim's therapist andwas thus familiar with the victim's case. That contention is not preserved for our review,however, inasmuch as defendant objected to the expert's testimony on a different ground at trial(see e.g. People v Valentine, 48AD3d 1268, 1268-1269 [2008], lv denied 10 NY3d 871 [2008]; People v Smith, 9 AD3d 745,746-747 [2004], lv denied 3 NY3d 742 [2004]). In any event, we conclude thatdefendant's present contention lacks merit because "the expert described specific behavior thatmight be unusual or beyond the ken of a jury [and] did not give an opinion concerning whetherthe abuse actually occurred" (People vLawrence, 81 AD3d 1326, 1327 [2011], lv denied 17 NY3d 797 [2011]; see People v Martinez, 68 AD3d1757, 1758 [2009], lv denied 14 NY3d 803 [2010]).
Viewing the evidence, the law and the circumstances of this case in totality and as of the timeof the representation, we conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]), and we further conclude that anydeficiencies in the presentence report do not warrant reversal (see People v Singh, 16 AD3d 974, 977-978 [2005], lvdenied 5 NY3d 769 [2005]; see alsoPeople v Rudduck, 85 AD3d 1557 [2011], lv denied 17 NY3d 861 [2011]). Inaddition, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "[R]esolution of issues ofcredibility, as well as the weight to be accorded to the evidence presented, are primarily questionsto be determined by the jury . . . , and the testimony of the victim . . .was not so inconsistent or unbelievable as to render it incredible as a matter of law" (People v Witherspoon, 66 AD3d1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotation marksomitted]).
Defendant failed to preserve for our review his contention that the court "improperlypenalized him for exercising his right to a jury trial, since he did not raise the issue at the time ofsentencing" (People v Tannis, 36AD3d 635 [2007], lv denied 8 NY3d 927 [2007]; see People v Dorn, 71 AD3d 1523,1523-1524 [2010]). We conclude in any event that his contention lacks merit. "[T]he mere factthat a sentence imposed after trial is greater than that offered in connection with plea negotiationsis not proof that defendant was punished for asserting [his] right to trial . . . , andthe record shows no retaliation or vindictiveness against the defendant for electing to proceed totrial" (Dorn, 71 AD3d at 1524 [internal quotation marks omitted]). Finally, we rejectdefendant's challenge to the severity of the sentence, and we note that the periods of postreleasesupervision imposed on the consecutive terms of imprisonment "shall merge with and besatisfied by discharge of the period of post[ ]release supervision having the longest unexpiredtime to run" (Penal Law § 70.45 [5] [c]). Present—Scudder, P.J., Centra, Green,Gorski and Martoche, JJ.