| People v Roman |
| 2013 NY Slip Op 04167 [107 AD3d 1441] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vWalter Roman, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Matthew P. Worth of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered January 22, 2010. The judgment convicted defendant, upon a jury verdict, ofcourse of sexual conduct against a child in the first degree, rape in the second degree,criminal sexual act in the second degree and endangering the 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 upon a jury verdict of,inter alia, course of sexual conduct against a child in the first degree (Penal Law §130.75 [1] [b]), rape in the second degree (§ 130.30 [1]), and criminal sexual act inthe second degree (§ 130.45 [1]), defendant contends that the verdict with respectto those counts is against the weight of the evidence. We reject that contention. We notethat a different verdict would not have been unreasonable inasmuch as this case restslargely on the jury's credibility findings with respect to the testimony of the victim(see People v Hutzler, 270 AD2d 934, 934 [2000], lv denied 94 NY2d948 [2000]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Nevertheless, viewing the evidence in light of those crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), and affording the requisite "great deference to the jurygiven its opportunity to view the witnesses" (Hutzler, 270 AD2d at 934; see People v Barreto, 64 AD3d1046, 1048-1049 [2009], lv denied 13 NY3d 834 [2009]), we conclude thatthe jury did not fail to give the evidence the weight it should be accorded (seegenerally Bleakley, 69 NY2d at 495). Contrary to the contention of defendant, thejury did not err in crediting the testimony of the People's medical expert with respect tophysical evidence of sexual contact with the victim, a child, over the testimony of thedefense expert on that subject. The People's medical expert, a pediatrician, focused herpractice on the examination of alleged child victims of sexual abuse and was certified bythe Child Abuse Medical Provider Program (CHAMP). The defense expert, anobstetrician/ gynecologist, focused his practice on adults and was not certified byCHAMP. Further, the People's medical expert physically examined the victim in thiscase, while the defense expert based his opinions on a single photograph taken duringthat examination. With respect to the experts' differing interpretations of the medicalevidence, "[t]he jury was free to adopt whichever version it found more credible"(People v Miller, 91 NY2d 372, 380 [1998]).[*2]
Contrary to the further contention of defendant,the victim's testimony was not incredible as a matter of law. Most of the allegedinconsistencies that defendant points to are of minimal, if any, significance. Moreover,with respect to the details of the first sexual encounter between the victim and defendant,we conclude that defendant mischaracterizes or exaggerates the inconsistencies in thevictim's statements. In any event, "[a]ny inconsistencies in the victim's testimony werehighlighted by defense counsel, and the jury's resolution of credibility issues with respectto the testimony of the victim is entitled to great deference" (People v DiTucci, 81 AD3d1249, 1250 [2011], lv denied 17 NY3d 794 [2011]; see People vHernandez, 291 AD2d 263, 263 [2002], lv denied 98 NY2d 697 [2002]). Wefurther note that several aspects of the victim's testimony were corroborated by otherwitnesses.
Defendant's contention that he was deprived of effective assistance of counsel bydefense counsel's failure to call unspecified exculpatory witnesses on his behalf or tointroduce alleged documentary evidence that would have established his innocence isbased on matters outside the record on appeal and therefore must be raised by way of amotion pursuant to CPL 440.10 (see People v Wittman, 103 AD3d 1206, 1206-1207 [2013];People v King, 90 AD3d1533, 1534 [2011], lv denied 18 NY3d 959 [2012]). To the extent thatdefendant's contention is reviewable on this appeal, we conclude that, viewing theevidence, the law and the circumstances of this case, in totality and as of the time of therepresentation, defendant received meaningful representation (see Wittman, 103AD3d at 1207; see generally People v Baldi, 54 NY2d 137, 147 [1981]).Notably, prior to trial, defense counsel served discovery demands; filed an omnibusmotion seeking, inter alia, dismissal or reduction of the charges in the indictment andsuppression of defendant's oral statements; and requested a bill of particulars. Defensecounsel also successfully moved to preclude potentially damaging testimony from a childwitness. At trial, defense counsel extensively cross-examined the People's witnesses,particularly the victim and the People's medical expert, and vigorously advocated fordefendant in his opening and closing statements, arguing that the victim was lying andthat the People's witnesses were unworthy of belief.
We reject the further contention of defendant that the court punished him forexercising his right to a trial. "[T]he mere fact that a sentence imposed after trial isgreater than that offered in connection with plea negotiations is not proof that defendantwas punished for asserting his right to trial . . . , and there is no indicationin the record before us that the sentencing court acted in a vindictive manner based ondefendant's exercise of the right to a trial" (People v Brink, 78 AD3d 1483, 1485 [2010], lvdenied 16 NY3d 742 [2011] [internal quotation marks omitted]; see People v Lewis, 93 AD3d1264, 1267 [2012], lv denied 19 NY3d 963 [2012]; People v Russell, 83 AD3d1463, 1465 [2011], lv denied 17 NY3d 800 [2011]). Finally, the sentence isnot unduly harsh or severe, particularly in light of the severity of the crimes anddefendant's failure to take any responsibility for his actions or to express remorse.Present—Scudder, P.J., Peradotto, Sconiers, Valentino and Martoche, JJ.