| People v Shinebarger |
| 2013 NY Slip Op 06479 [110 AD3d 1478] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRichard E. Shinebarger, Appellant. |
—[*1] Keith A. Slep, District Attorney, Belmont, for respondent.
Appeal from a judgment of the Allegany County Court (Thomas P. Brown, J.),rendered July 14, 2011. The judgment convicted defendant, upon a jury verdict, of rapein the first degree and course of sexual conduct against a child in the first degree.
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 first degree (Penal Law § 130.35 [4]) and course of sexualconduct against a child in the first degree (§ 130.75 [1] [b]). Defendant failed topreserve for our review his contention that the People did not establish an adequate chainof custody with respect to the underwear collected from defendant's home and the rapekit performed on the victim (seePeople v Alexander, 48 AD3d 1225, 1226 [2008], lv denied 10 NY3d859 [2008]). In any event, that contention lacks merit. "The police provided sufficientassurances of the identity and unchanged condition of th[at] evidence . . . ,and thus any alleged gaps in the chain of custody went to [its] weight . . . ,not its admissibility" (People vKennedy, 78 AD3d 1477, 1478 [2010], lv denied 16 NY3d 798 [2011];see People v Hawkins, 11NY3d 484, 494 [2008]; People v Julian, 41 NY2d 340, 343 [1977]).
Defendant raises several points in support of his challenge to the verdict as againstthe weight of the evidence. First, defendant contends that County Court erred inadmitting hearsay evidence in the form of the victim's verbal disclosure of the rape. Wereject that contention on the ground that the victim's statements were admissible underthe prompt outcry exception to the rule against hearsay (see generally People v Shelton,1 NY3d 614, 615 [2004]). Defendant further contends that the court erred inoverruling his objection to certain testimony of a police officer as "oblique" or indirecthearsay. We reject that contention on the ground that the officer's testimony "did notimplicate acts that were intended as or could be interpreted as . . .assertion[s]" (People vCarpenter, 52 AD3d 1050, 1051 [2008], lv denied 11 NY3d 735 [2008],cert denied 556 US —, 129 S Ct 1613 [2009]; see People v Salko,47 NY2d 230, 239 [1979], remittitur amended 47 NY2d 1010 [1979]).Defendant also challenges the credibility of the People's witnesses, but we cannotconclude that the testimony of those witnesses was "so inconsistent or unbelievable as torender it incredible as a matter of law" (People v Black, 38 AD3d 1283, 1285 [2007], lvdenied 8 NY3d 982 [2007]). We note that "[r]esolution of issues of credibility, aswell as the weight to be accorded to the evidence presented, are primarily questions to bedetermined by the jury" (Peoplev Witherspoon, 66 AD3d 1456, 1457 [2009], lv denied 13 NY3d 942[2010] [internal quotation marks omitted]). Thus, viewing [*2]the evidence in light of the elements of the crimes ascharged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Contrary to defendant's further contention, the court properly exercised its discretionin denying his motion for new assigned counsel. "The court conducted the requisiteinquiry when defendant made his . . . request for substitution of counsel andconcluded that defendant's objections[, which concerned defense counsel's lack of candorin advising him,] were without merit" (People v Johnson, 103 AD3d 1251, 1251 [2013], lvdenied 21 NY3d 1005 [2013]; see People v Barber, 66 AD3d 1370, 1371 [2009], lvdenied 13 NY3d 937 [2010]; see generally People v Porto, 16 NY3d 93, 99-100 [2010]).Finally, although not raised by defendant, we note that the prosecutor improperly askeddefendant on cross-examination whether the prosecution witnesses were lying. We againforcefully condemn such questions (see People v Washington, 89 AD3d 1516, 1516-1517[2011], lv denied 18 NY3d 963 [2012]), although we note that the issue wouldnot require reversal of the judgment herein inasmuch as the prosecutor's misconduct didnot substantially prejudice defendant (see People v Paul, 212 AD2d 1020, 1021[1995], lv denied 85 NY2d 912 [1995]). Present—Smith, J.P., Fahey,Sconiers, Valentino and Whalen, JJ.