| People v Brown |
| 2013 NY Slip Op 01282 [103 AD3d 912] |
| February 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dwayne Brown, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Freehill, J.), rendered December 8, 2010, convicting him of course of sexual conductagainst a child in the first degree and course of sexual conduct against a child in thesecond degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofcourse of sexual conduct against a child in the second degree, vacating the sentenceimposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
The defendant was not deprived of his right to the effective assistance of trialcounsel. There is no merit to the defendant's contention that his attorney waived a pretrialsuppression hearing. The record shows that the trial court incorporated the suppressionissue into the trial (see CPL 710.10). In addition, the record as a wholedemonstrates that the defendant was afforded the effective assistance of counsel (seePeople v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d137, 147 [1981]).
The defendant contends that the County Court improperly curtailed the scope ofcross-examination of the complaining witness. In general, a "witness may be interrogatedupon cross-examination with respect to any immoral, vicious, or criminal acts which mayaffect his [or her] character and show [the witness] to be unworthy of belief, provided thecross-examiner questions [the witness] in good faith and upon a reasonable basis in fact"(Matter of Jerome D., 212 AD2d 699, 700 [1995]; see People v Daley, 9 AD3d601, 602 [2004]). Here, any error in connection with the scope of cross-examinationwas harmless, as there was overwhelming evidence of the defendant's guilt, and noreasonable possibility that the error might have contributed to the defendant's conviction(see People v Crimmins, 36 NY2d 230, 237-238 [1975]; People v Wallace, 60 AD3d1268, 1270 [2009]; People v Batista, 113 AD2d 890, 891 [1985]).
As the People correctly concede, the defendant's conviction of the count of course ofsexual conduct against a child in the second degree must be dismissed. As charged, thatcount was an inclusory concurrent count of the conviction of course of sexual conductagainst a child in [*2]the first degree (see CPL1.20 [37]; 300.30 [4]; People v Grier, 37 NY2d 847, 848 [1975]).
The defendant failed to preserve for appellate review his challenge to the legalsufficiency of the evidence (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]; People v Finger, 95 NY2d 894, 895 [2000]; People vGray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), theprosecution adduced legally sufficient proof of the defendant's guilt of the offense ofcourse of sexual conduct against a child in the first degree (see People v Ames, 96 AD3d867, 868 [2012]; People vLupo, 92 AD3d 1136, 1137-1138 [2012]; People v Stewart, 60 AD3d 1111, 1112-1113 [2009]; People v Nowinski, 36 AD3d1082, 1083-1084 [2007]; People v Frary, 29 AD3d 1223, 1224-1225 [2006]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Romero, 7 NY3d633, 644-645 [2006]), we nevertheless accord great deference to the trier of fact'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record, weare satisfied that the verdict of guilt with respect to the count charging course of sexualconduct against a child in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.