| People v Irvin |
| 2013 NY Slip Op 07311 [111 AD3d 1294] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vWayne Irvin, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.),rendered September 4, 2012. The judgment convicted defendant, upon a jury verdict, ofrape in the first degree, criminal sexual act in the first degree, sexual abuse in the firstdegree 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 first degree (Penal Law § 130.35 [3]), criminal sexual act inthe first degree (§ 130.50 [3]), sexual abuse in the first degree (§ 130.65[3]), and endangering the welfare of a child (§ 260.10 [1]). Defendant failed topreserve for our review his contention that the testimony of a police witness regardinghis observations of the victim's interview deprived him of his right of confrontation (see People v Davis, 87 AD3d1332, 1334-1335 [2011], lv denied 18 NY3d 858 [2011],reconsideration denied 18 NY3d 956 [2011]). In any event, even assuming,arguendo, that the police witness's testimony equated to the introduction of the victim'stestimonial statements in evidence, we note that " '[t]he [Confrontation] Clause. . . does not bar the use of testimonial statements for purposes other thanestablishing the truth of the matter asserted' " (People v Reynoso, 2 NY3d 820, 821 [2004], quotingCrawford v Washington, 541 US 36, 59 n 9 [2004]; see Davis, 87 AD3dat 1335). Here, the testimony was properly admitted in evidence for the purpose ofexplaining the police witness's actions and the sequence of events leading to defendant'sarrest (see People v Davis,23 AD3d 833, 835 [2005], lv denied 6 NY3d 811 [2006]). To the extent thatdefendant contends that he was deprived of his right of confrontation by the victim'sfailure to testify, that contention is unpreserved for our review and, in any event, iswithout merit (see People vWatts, 58 AD3d 647, 648 [2009], lv dismissed 12 NY3d 763 [2009],lv denied 12 NY3d 789 [2009]; see also People v Andre W., 44 NY2d179, 184 [1978]).
Contrary to defendant's contention, County Court properly refused to suppress thewritten statement that he made to a police witness. The record of the suppression hearingsupports the court's determination that defendant knowingly, voluntarily and intelligentlywaived his Miranda rights before making the statement (see People v Sands, 81 AD3d1263, 1263 [2011], lv denied 17 NY3d 800 [2011]).[*2]
Defendant further contends that the courtdeprived him of his constitutional rights to a fair trial, impartial jury, and due process byfailing to excuse two prospective jurors who did not unequivocally assure theirimpartiality. "By failing to raise that challenge in the trial court, however, defendantfailed to preserve it for our review" (People v Stepney, 93 AD3d 1297, 1297-1298 [2012],lv denied 19 NY3d 968 [2012]). In any event, "even if defendant had challenged[those] prospective juror[s] . . . and his challenge[s] had merit, [they]nevertheless would not be properly before us because he failed to exhaust his peremptorychallenges prior to the completion of jury selection" (id. at 1298).
By making only a general motion for a trial order of dismissal, defendant failed topreserve for our review his contention that there is legally insufficient evidence tocorroborate his confession pursuant to CPL 60.50 (see People v Gray, 86 NY2d10, 19 [1995]; People vTyra, 84 AD3d 1758, 1759 [2011], lv denied 17 NY3d 822 [2011]).Defendant, however, also contends that the verdict is against the weight of the evidence,and " 'we necessarily review the evidence adduced as to each of the elements of thecrimes in the context of our review of [that contention]' " (Stepney, 93 AD3d at1298; see People vDanielson, 9 NY3d 342, 349-350 [2007]). Viewing the evidence in light of theelements of the crimes as charged to the jury, we conclude that "the People provedbeyond a reasonable doubt all elements of the crimes charged" (Stepney, 93AD3d at 1298; see Danielson, 9 NY3d at 349; see generally People vBleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's further contention that he was denied effective assistance ofcounsel. To the extent that defendant contends that he was denied effective assistance ofcounsel based upon defense counsel's failure to make a more specific motion for a trialorder of dismissal, that contention is without merit because defendant failed todemonstrate that the motion, if made, would have been successful (see People v Bassett, 55 AD3d1434, 1437-1438 [2008], lv denied 11 NY3d 922 [2009]). To the extent thatdefendant contends that defense counsel was ineffective for failing to challenge twoprospective jurors, that contention also lacks merit inasmuch as defendant" 'failed to show the absence of a strategic explanation for defense counsel's failure' tochallenge th[ose] prospective juror[s]" (Stepney, 93 AD3d at 1298). With respectto each of the remaining alleged instances of ineffective assistance, we conclude thatdefendant failed " 'to demonstrate the absence of strategic or other legitimateexplanations' for counsel's alleged shortcomings" (People v Benevento, 91 NY2d708, 712 [1998]), and the record establishes that defense counsel provided meaningfulrepresentation to defendant (see People v Baldi, 54 NY2d 137, 147 [1981]).Defendant's contention with respect to alleged prosecutorial misconduct has not beenpreserved for our review (seePeople v Arnold, 107 AD3d 1526, 1527 [2013]; People v Mull, 89 AD3d1445, 1446 [2011], lv denied 19 NY3d 965 [2012]), and we decline toexercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
Defendant failed to preserve for our review any contention regarding the failure tocomply with the procedural requirements of CPL 400.21 (see People v Perez, 85 AD3d1538, 1541 [2011]). In any event, "[a]lthough [the court] did not formally askdefendant whether he wished to controvert the allegations in the [predicate] felonyoffender statement (see CPL 400.21 [3]), the record establishes that defendanthad an opportunity to do so" (People v Hughes, 28 AD3d 1185, 1185 [2006], lvdenied 7 NY3d 790 [2006]). Thus, under the circumstances presented here, weconclude that there was the requisite substantial compliance with CPL 400.21 (seeid.). Defendant's contention that the court erred in setting the expiration date of theorder of protection is also unpreserved for our review (see CPL 470.05 [2]). Inany event, the court properly calculated the order of protection's expiration date(see CPL 530.13 [4] [A]). Finally, we conclude that the sentence is not undulyharsh or severe. Present—Scudder, P.J., Smith, Fahey, Sconiers and Valentino, JJ.