| People v Jones |
| 2012 NY Slip Op 09102 [101 AD3d 1482] |
| December 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Sidney Jones,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Malone Jr., J. Appeals (1) from a judgment of the County Court of Albany County (Herrick,J.), rendered January 13, 2011, upon a verdict convicting defendant of the crimes of course ofsexual conduct against a child in the first degree, rape in the second degree (two counts), rape inthe third degree (three counts), criminal sexual act in the third degree and endangering thewelfare of a child (two counts), and (2) by permission, from an order of said court, entered April15, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
Defendant was charged in a nine-count indictment with various sex crimes stemming fromsexual contacts that he had with two underage females over a series of years which culminated inone of them becoming pregnant. Following a jury trial, defendant was convicted of the chargedcrimes and sentenced to an aggregate prison term of 25 years, followed by 20 years of postreleasesupervision. Defendant's subsequent motion to vacate the judgment of conviction was denied byCounty Court without a hearing. Defendant appeals from the judgment of conviction and, bypermission, from the order denying his postjudgment motion.
Defendant's contention that the jury's verdict is against the weight of the evidence is [*2]unpersuasive. We have reviewed the trial evidence, including thetestimony of the victims, their mother, the police investigators, the medical staff at PlannedParenthood and the forensic scientist who conducted DNA analysis of the aborted fetus, whichresulted in a 99.99% probability that defendant was the father, and have weighed it againstdefendant's testimony that he never had sexual contact with the victims. Viewing all of theevidence in a neutral light and according deference to the jury's assessment of witness credibilityand resolution of conflicting testimony, the verdict was not against the weight of the evidence (see People v Kruppenbacher, 81 AD3d1169, 1174 [2011], lv denied 17 NY3d 797 [2011]; People v Stewart, 60 AD3d 1111,1113 [2009], lv denied 12 NY3d 860 [2009]).
Furthermore, we find no improvident exercise of discretion in County Court's rulingpermitting the People to present evidence of prior bad acts allegedly committed by defendantagainst one of the victims regarding alleged sexual conduct that occurred both prior to and afterthe period of time charged in count 1 of the indictment. The record establishes that the courtproperly balanced the probative value of the evidence against its potential prejudice to defendant.The court limited the People's inquiry of defendant's conduct and also gave appropriate limitinginstructions to the jury in order to insulate defendant from any prejudicial effect that the evidencemay have had (see People vMaggio, 70 AD3d 1258, 1260 [2010], lv denied 14 NY3d 889 [2010]).Moreover, the record demonstrates that the uncharged conduct was not admitted to establishdefendant's propensity to commit the crimes charged, but rather was "admissible to develop thenecessary background and complete the victim's narrative" of the nature of the alleged abuse andits escalation (People v Shofkom,63 AD3d 1286, 1287-1288 [2009], lv denied 13 NY3d 799 [2009], appealdismissed 13 NY3d 933 [2010]; see People v Maggio, 70 AD3d at 1260).
We also find no abuse of discretion in County Court denying defendant's pro se CPL article440 motion without a hearing. To the extent that defendant's claims of ineffective assistance ofcounsel and prosecutorial misconduct are based on information contained in the record, thoseissues are reviewable on direct appeal rather than on a CPL article 440 motion (see People v Vallee, 97 AD3d 972,974 [2012]; People v Stevens, 95AD3d 1451, 1452 [2012], lv denied 19 NY3d 1029 [2012]). Furthermore,notwithstanding defendant's affidavit, his claims pertaining to matters outside the record areunsupported by the requisite sworn allegations of fact (see CPL 440.30 [4] [d]; People v Polanco, 52 AD3d 947,947 [2008], lv denied 11 NY3d 793 [2008]).
Finally, defendant's contentions on direct appeal challenging aspects of voir dire and thePeople's summation are unpreserved for our review. Defendant's remaining arguments have beenreviewed and found to be without merit.
Mercure, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment and orderare affirmed.