| People v Brown |
| 2012 NY Slip Op 04863 [96 AD3d 1561] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert Brown,Appellant. |
—[*1] Robert Brown, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedJanuary 29, 2009. The judgment convicted defendant, upon a jury verdict, of sexual abuse in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of sexualabuse in the first degree (Penal Law § 130.65 [1]), defendant challenges the legalsufficiency of the evidence to support the conviction. Defendant failed to preserve his challengefor our review, however, inasmuch as his motion for a trial order of dismissal was not "'specifically directed' at" the same alleged shortcoming in the evidence raised on appeal(People v Gray, 86 NY2d 10, 19 [1995]). In any event, defendant's contention lacksmerit, inasmuch as there is a "valid line of reasoning and permissible inferences" to leadreasonable persons to the conclusion reached by the jury based on the evidence presented at trial(People v Bleakley, 69 NY2d 490, 495 [1987]). Because we conclude that the evidence attrial is legally sufficient to support the conviction, defendant's further contention that theevidence presented to the grand jury was legally insufficient is not reviewable on appeal(see CPL 210.30 [6]; People vPrior, 23 AD3d 1076, 1076-1077 [2005], lv denied 6 NY3d 817 [2006]).Furthermore, we reject defendant's contention that his trial counsel was ineffective for failing topreserve his legal sufficiency challenge for our review. "A defendant is not denied effectiveassistance of trial counsel merely because counsel does not make a motion or argument that haslittle or no chance of success" (People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Bassett, 55 AD3d1434, 1438 [2008], lv denied 11 NY3d 922 [2009]).
Defendant further contends that the verdict is against the weight of the evidence and factuallyinconsistent because the jury acquitted him of rape in the first degree under Penal Law §130.35 (1) and found him guilty of sexual abuse in the first degree. Viewing the evidence in lightof the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), [*2]we reject that contention (see generally Bleakley, 69 NY2dat 495). Specifically, the jury was entitled to infer from the evidence at trial that defendantforcibly committed an act of penis-to-vagina contact that qualified as sexual contact (see§ 130.00 [3]), but that stopped short of sexual intercourse, i.e., "penetration," required forrape (§ 130.00 [1]; see § 130.35). We thus conclude that defendantmistakenly relies on People v Boykin (127 AD2d 1004, 1004 [1987], lv denied69 NY2d 1001 [1987]) and People v Vicaretti (54 AD2d 236 [1976]), in which there wasno evidence at trial from which such an inference could be drawn.
Defendant failed to preserve for our review several of his contentions concerning alleged actsof prosecutorial misconduct and, in any event, " 'any alleged [prosecutorial] misconduct was notso pervasive or egregious as to deprive defendant of a fair trial' " (People v Szyzskowski, 89 AD3d1501, 1503 [2011]). Contrary to defendant's further contention, County Court did not err inpermitting a witness to testify that he and other men reported to the police that defendant had"raped a female." The testimony regarding that out-of-court statement was not hearsay because it"was not received for its truth, but [instead was received] for the legitimate, nonhearsay purposeof completing the narrative of events and explaining police actions" in subsequently trackingdown defendant and the victim (Peoplev Perez, 47 AD3d 409, 411 [2008], lv denied 10 NY3d 843 [2008]). Defendantobjected to the admission of only a portion of the testimony and photographic evidence related tohis alleged assault of the victim's boyfriend. Thus, his contention that the testimony and evidencewere irrelevant inasmuch as charges pertaining to that assault had been dismissed prior to trial ispreserved for our review only in part (see CPL 470.05 [2]). To the extent that defendant'scontention is preserved for our review, we agree with him that the court abused its discretion inadmitting that testimony and evidence at trial (see generally People v Carroll, 95 NY2d375, 385-387 [2000]). Nevertheless, we conclude that any error in the admission of the testimonyand evidence is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242[1975]). Defendant failed to preserve for our review his challenge to the testimony of two policeofficers regarding out-of-court showup identifications made by the victim and several otherwitnesses (see CPL 470.05 [2]), and we decline to exercise our power to address thatchallenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant failed to preserve for our review his contention that the order of protection issuedby the court does not comport with CPL 530.13 (see People v Nieves, 2 NY3d 310, 315-317 [2004]), and we declineto exercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Contrary to defendant's contention in his pro se supplemental brief, the court had subjectmatter jurisdiction over the charge of sexual abuse in the first degree contained in the indictment.Although the felony complaint, which preceded the indictment, did not contain such a charge, thegrand jury had the authority to consider offenses other than "those designated in the felonycomplaint" (People v Simmons, 178 AD2d 972, 972 [1991], lv denied 79 NY2d1007 [1992]). Defendant failed to preserve for our review his further contention, raised in his prose supplemental brief, that the charge of sexual abuse in the first degree set forth in theindictment was not adequately specific (see People v Adams, 59 AD3d 928, 929 [2009], lv denied12 NY3d 813 [2009]; see also People v Soto, 44 NY2d 683, 684 [1978]). In any event,that contention lacks merit. The indictment properly provided defendant with "fair notice of thenature of the charge[ ] against him, and of the manner, time and place of the conduct underlyingthe accusations, so as to enable him to answer to the charge[ ] and to prepare an adequatedefense" (People v Keindl, 68 NY2d 410, 416 [1986], rearg denied 69 NY2d 823[1987]). Defendant also failed to preserve for our review his additional contention in his pro sesupplemental brief that the counts charging him with rape in the first degree and sexual abuse inthe first degree were duplicitous because they were premised upon the same facts and evidence(see People v Becoats, 17 NY3d643, 650 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]). We note inany event that defendant's contention is moot in light of his acquittal of rape in the first degree(see People v Haberer, 24 AD3d1283, 1283 [2005], lv denied 7 NY3d 756, 848 [2006]), and that it also is withoutmerit (see People v Scott, 12 AD3d1144, 1145 [2004], lv denied 4 NY3d 767 [2005]).
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Smith, Centra, Lindley and Martoche, JJ.