| People v Martinez |
| 2014 NY Slip Op 00810 [114 AD3d 1173] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Kenneth Martinez, Jr., Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered June 1, 2009. The judgment convicted defendant, upon a jury verdict, ofrape in the first degree, rape in the second degree and endangering the welfare of a child(two 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 rape in the first degree (Penal Law § 130.35 [1]), rape in the seconddegree (§ 130.30 [1]), and two counts of endangering the welfare of a child(§ 260.10 [1]). Defendant failed to preserve for our review his contention that hewas denied a fair trial by prosecutorial misconduct on summation (see People v Stanley, 108AD3d 1129, 1131 [2013], lv denied 22 NY3d 959 [2013]). In any event, hiscontention is without merit. In explaining what the victim had to go through afterdisclosing the abuse, the prosecutor stated that the victim had spoken with differentagencies after she made her initial disclosure, she underwent a genital exam, and sheappeared before the grand jury and at trial. Contrary to defendant's contention, theprosecutor did not state that the victim had made prior statements that were consistentwith her trial testimony. Moreover, the prosecutor's remarks were a fair response todefense counsel's theory that the victim had fabricated the allegations (see generally People vSantana, 55 AD3d 1338, 1339 [2008], lv denied 12 NY3d 762 [2009]).Next, the prosecutor's remark about defense counsel's probable response if the victim hadbeen crying on the witness stand was also a fair response to defense counsel's remarks onsummation, in which he was critical of the victim's lack of affect when testifying (seegenerally People v Spivey, 305 AD2d 135, 135 [2003], lv denied 100 NY2d587 [2003]). The prosecutor's remarks that there was "no custody battle" and that thevictim did not have a previous genital examination were fair comment on the evidence(see generally People vMcCauley, 19 AD3d 1130, 1131 [2005], lv denied 5 NY3d 808 [2005]).
We reject defendant's contention that he was denied effective assistance of counsel.To the extent that defendant contends that defense counsel was ineffective for failing toobject to the prosecutor's remarks during summation, that contention is without meritinasmuch as the prosecutor's comments did not constitute prosecutorial misconduct (see People v Hill, 82 AD3d1715, 1716 [2011], lv denied 17 NY3d 806 [2011]). We further concludethat defendant failed to show that an [*2]objection to thetestimony of the medical expert would have been successful (see generally People v Stultz, 2NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Viewing theevidence, the law, and the circumstances of this case in totality and at the time ofrepresentation, we conclude that defendant received effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Defendant's contention that the order of protection should be modified to takeinto account jail time credit is not preserved for our review (see People v Hoyt, 107 AD3d1426, 1426 [2013], lv denied 21 NY3d 1042 [2013]; see generally People v Nieves,2 NY3d 310, 315-317 [2004]). In any event, that contention is without meritinasmuch as the expiration date of the order of protection could have been significantlylonger if Supreme Court had included the period of postrelease supervision whencalculating the maximum expiration date of the "determinate sentence of imprisonmentactually imposed" (CPL former 530.12 [5] [ii]), as it could have (see People v Williams, 19NY3d 100, 103-104 [2012]). Present—Scudder, P.J., Centra, Fahey, Carniand Valentino, JJ.