| People v Nelson |
| 2012 NY Slip Op 02987 [94 AD3d 1426] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin A.Nelson, Appellant. |
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Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), renderedFebruary 4, 2002. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree, rape in the second degree, incest, sexual abuse in the second degree (two counts) 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 onecount each of rape in the first degree (Penal Law § 130.35 [1]), rape in the second degree(§ 130.30 [1]), incest (former § 255.25) and endangering the welfare of a child(§ 260.10 [1]), and two counts of sexual abuse in the second degree (§ 130.60 [2]).We reject the contention of defendant that he was denied effective assistance of counsel based ondefense counsel's failure to retain an expert witness to counter the testimony of the People'sexpert (see People v Prince, 5 AD3d1098, 1098 [2004], lv denied 2 NY3d 804 [2004]), and defendant failed " 'todemonstrate the absence of strategic or other legitimate explanations for' " the remaininginstances of alleged ineffectiveness (People v Benevento, 91 NY2d 708, 712 [1998]).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 reject defendant's further contention that the verdict is against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Thejury was entitled to credit the victim's account and to reject the alibi testimony presented bydefendant (see People v Brown, 34AD3d 1303 [2006]; People v Johnson, 268 AD2d 891, 894 [2000], lv denied94 NY2d 921 [2000]). Defendant failed to preserve for our review his contention that CountyCourt erred in admitting in evidence his statement to the police inasmuch as defendant did notmove to suppress that statement (seePeople v Delatorres, 34 AD3d 1343, 1344 [2006], lv denied 8 NY3d 921[2007]), and he also failed to preserve for our review his contention that he was denied a fair trialby prosecutorial misconduct (see CPL 470.05 [2]; People v Comer, 91 AD3d 1339, 1339-1340 [2012]). 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, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Fahey, Lindley and Martoche, JJ.