| People v Ward |
| 2013 NY Slip Op 04529 [107 AD3d 1605] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v OrvisWard, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego, for respondent.
Appeal from a judgment of the Oswego County Court (Spencer J. Ludington, A.J.),rendered June 28, 2011. The judgment convicted defendant, upon a jury verdict, of rapein the second degree, criminal sexual act in the second degree, sexual abuse in the firstdegree, sexual abuse 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: Defendant appeals from a judgment convicting him upon a juryverdict of rape in the second degree (Penal Law § 130.30 [1]), criminal sexual actin the second degree (§ 130.45 [1]), sexual abuse in the first degree (§130.65 [2]), sexual abuse in the second degree (§ 130.60 [2]), and endangering thewelfare of a child (§ 260.10 [1]). Defendant contends that County Court erred indenying his motion to preclude the People from presenting his statement to the police inevidence at trial because it constituted prior bad act evidence offered solely to establishhis propensity to commit sexual crimes. We reject that contention. "In a criminalprosecution, any act or declaration of the accused inconsistent with innocence isadmissible as an admission" (Prince, Richardson on Evidence § 8-204 [Farrell11th ed]; see People vJackson, 29 AD3d 409, 411-412 [2006], affd 8 NY3d 869 [2007]; People v Caban, 5 NY3d143, 151 n [2005]; Peoplev Howard, 101 AD3d 1749, 1751 [2012]). Here, defendant's statement wasproperly admitted in evidence because it contained admissions concerning the crimescharged in the indictment (see Jackson, 29 AD3d at 411-412; People vKnox, 232 AD2d 811, 812 [1996], lv denied 89 NY2d 943 [1997];People v Ragin, 224 AD2d 642, 642 [1996], lv denied 88 NY2d 883[1996]). We reject the further contention of defendant that the admission of his statementin evidence rendered the second, fourth, and seventh counts of the indictment duplicitous(see People v Ramirez, 99AD3d 1241, 1242 [2012], lv denied 20 NY3d 988 [2012]; People v Casado, 99 AD3d1208, 1210 [2012], lv denied 20 NY3d 985 [2012]).
We conclude that, contrary to the contention of defendant, the court did not abuse itsdiscretion in denying his motion for a mistrial based upon the misconduct of twoprosecution witnesses (see People v Ortiz, 54 NY2d 288, 292 [1981]; Peoplev Robinson, 309 AD2d 1228, 1229 [2003], lv denied 1 NY3d 579 [2003]).Upon the motion of a defendant, the court "must declare a mistrial and order a new trialof the indictment . . . when there occurs during the trial an error or legaldefect [*2]in the proceedings, or conduct inside oroutside the courtroom, which is prejudicial to the defendant and deprives him [or her] ofa fair trial" (CPL 280.10 [1]). Here, the record establishes that defendant was neitherprejudiced nor deprived of a fair trial by the misconduct of the witnesses (see People v Donald, 6 AD3d1177, 1177 [2004], lv denied 3 NY3d 639 [2004]; see generallyCPL 280.10 [1]; Ortiz, 54 NY2d at 292; Robinson, 309 AD2d at 1229).Defendant failed to preserve for our review his contention with respect to the court'scurative instruction concerning the misconduct of the witnesses or his contention that thecourt should have permitted defense counsel to elicit hearsay testimony from a witnesson the subject of the misconduct, and we decline to exercise our power to reach thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Defendant likewise failed to preserve for our review his contention that he wasdenied a fair trial by prosecutorial misconduct during summation inasmuch as he failed toobject to the two challenged comments (see People v Madera, 103 AD3d 1197, 1199 [2013]; People v Foster, 101 AD3d1668, 1670 [2012], lv denied 20 NY3d 1098 [2013]; People v Wright, 85 AD3d1642, 1643 [2011], lv denied 17 NY3d 863 [2011]). In any event, theprosecutor's characterization of defendant's statement was a fair response to defensecounsel's summation and/or a fair comment on the evidence (see People v Goupil, 104AD3d 1215, 1216 [2013]). Although the prosecutor's characterization of the trial asa "search for the truth" was indeed improper (see People v Maye, 206 AD2d 846,846 [1994]; People v Smith, 184 AD2d 326, 326 [1992], lv denied 80NY2d 910 [1992]), we conclude that the prosecutor's "single improper comment was notso egregious that defendant was thereby deprived of a fair trial" (People vWillson, 272 AD2d 959, 960 [2000], lv denied 95 NY2d 873 [2000]; seeSmith, 184 AD2d at 326). Nor can it be said that defendant received ineffectiveassistance of counsel due to the failure of defense counsel to object to that singleimproper remark (see People vWiley, 104 AD3d 1314, 1314 [2013]; People v Tolliver, 93 AD3d 1150, 1151 [2012], lvdenied 19 NY3d 968 [2012]). Rather, defense counsel provided defendant withmeaningful representation throughout the proceedings (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe, particularly in light of the severityof the crimes and their impact on the victim. Present—Centra, J.P., Peradotto,Sconiers, Valentino and Whalen, JJ.