| People v Cullen |
| 2013 NY Slip Op 06476 [110 AD3d 1474] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vWilliam Cullen, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered September 11, 2009. The judgment convicted defendant, upon a juryverdict, of rape in the second degree (two counts), criminal sexual act in the seconddegree and incest in the second degree (three counts).
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 two counts of rape in the second degree (Penal Law § 130.30 [1]), onecount of criminal sexual act in the second degree (§ 130.45 [1]) and three countsof incest in the second degree (§ 255.26). Contrary to defendant's contention, weconclude that, viewing the evidence in light of the elements of the crimes as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Defendant's challenge to the weight of the evidence is based largely upon the allegedincredibility of the victim, and we conclude that there is no basis in the record for us todisturb the jury's credibility determinations (see People v Johnson, 94 AD3d 1563, 1564 [2012], lvdenied 19 NY3d 962 [2012]; People v Ellison, 302 AD2d 955, 955 [2003],lv denied 99 NY2d 654 [2003]). Indeed, the letters written by defendant to thevictim provide "compelling corroboration of the victim's testimony as to the nature oftheir relationship" (People vHopkins, 56 AD3d 820, 823 [2008]).
Defendant further contends that Supreme Court erred in permitting the prosecutor toimproperly bolster the victim's testimony by eliciting testimony from two witnessesconcerning the victim's prior consistent statements. We conclude that the testimony of thewitnesses at issue did not constitute improper bolstering inasmuch as it was not admittedfor its truth (see People vLudwig, 104 AD3d 1162, 1163 [2013]). Defendant failed to preserve for ourreview his contention that certain remarks made by the prosecutor during openingstatements and on summation constituted prosecutorial misconduct that deprived him ofa fair trial inasmuch as he failed to object to those remarks (see People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]). In any event, reversal isnot required based upon the alleged misconduct (see People v Sweeney, 15 AD3d 917, 917 [2005], lvdenied 4 NY3d 891 [2005]; see generally People v Galloway, 54 NY2d 396,401 [1981]).[*2]
Defendant also contends that the court erred inallowing the People to present evidence of various uncharged acts of sexual misconductand violence committed against the victim. Defendant failed to preserve for our reviewhis contention with respect to many of the instances of alleged error (see People v Hunt, 74 AD3d1741, 1742 [2010], lv denied 15 NY3d 806 [2010]; People v Williams, 26 AD3d772, 773 [2006], lv denied 6 NY3d 840 [2006]), and we decline to exerciseour power to review his contention regarding those alleged errors as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). We rejectdefendant's contention with respect to the remaining alleged errors, and we conclude thatthe challenged evidence was properly admitted because it placed the " 'charged conductin context' " and " 'provided necessary background information on the nature of therelationship' between defendant and the victim" (People v Leeson, 12 NY3d 823, 827 [2009], quoting People v Dorm, 12 NY3d16, 19 [2009]; see People vShofkom, 63 AD3d 1286, 1287 [2009], lv denied 13 NY3d 799 [2009],appeal dismissed 13 NY3d 933 [2010]).
Defendant contends that the court erred in admitting letters he wrote to the victimbecause their prejudicial effect outweighed their probative value. Defendant failed topreserve his present contention for our review because it differs from that raised beforethe trial court (see People vMarra, 96 AD3d 1623, 1625 [2012], affd 21 NY3d 979 [2013]), and wedecline to exercise our power to review it as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Defendant also failed to preserve for our reviewhis contention that the court erred in constructively amending the indictment (see generally People v Little,23 AD3d 1117, 1118 [2005], lv denied 6 NY3d 777 [2006]). In any event,defendant's contention lacks merit inasmuch as defendant conceded that he was notprejudiced by the constructive amendment, and the amendment did not change the theoryof the prosecution (see People vWilliams, 24 AD3d 882, 883-884 [2005], lv denied 6 NY3d 854[2006]).
Contrary to defendant's further contention, his sentence is not unduly harsh or severe.Finally, we have reviewed defendant's remaining contention concerning the allegedineffective assistance of counsel and conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Centra, J.P., Peradotto, Carni and Lindley, JJ.