| People v Riley |
| 2014 NY Slip Op 03140 [117 AD3d 1495] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAdrian Riley, Appellant. |
John A. Herbowy, Rome, for defendant-appellant.
Adrian Riley, defendant-appellant pro se.
Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel),for respondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), renderedJanuary 28, 2009. The judgment convicted defendant, upon a jury verdict, of course ofsexual conduct against a child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of course of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [a]). Contrary to defendant's contention, the evidence, viewedin the light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), is legally sufficient to support the conviction. In addition, viewing the evidencein light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Both thevictim and defendant testified at trial, and we perceive no basis in the record fordisturbing the jurors' credibility determinations (see People v Ennis, 107 AD3d 1617, 1618 [2013], lvdenied 22 NY3d 1040 [2013]; People v Burgos, 90 AD3d 1670, 1671 [2011], lvdenied 19 NY3d 862 [2012]).
By failing to object to County Court's ultimate Sandoval ruling, defendantfailed to preserve for our review his contention in his main and pro se supplementalbriefs that he was denied a fair trial based on the ruling (see People v Tolliver, 93AD3d 1150, 1151 [2012], lv denied 19 NY3d 968 [2012]). In any event, weconclude that the court did not abuse its discretion in allowing the prosecutor to questiondefendant about his conviction of criminal possession of a weapon in the fourth degreeeven though he committed that crime after the incident herein (see People vPavao, 59 NY2d 282, 292 n 3 [1983]; People v Davis, 243 AD2d 831, 833[1997]). That conviction demonstrated defendant's "willingness to place his own interestsabove those of society" (Peoplev Hammond, 84 AD3d 1726, 1726-1727 [2011], lv denied 17 NY3d 816[2011]; see People v Cosby,82 AD3d 63, 68 [2011], lv denied 16 NY3d 857 [2011]).
Defendant's further contention in his main and pro se supplemental briefs that he wasdenied a fair trial by prosecutorial misconduct on summation is preserved for our reviewwith [*2]respect to only one instance of allegedmisconduct (see CPL 470.05 [2]). In any event, we conclude with respect to theunpreserved instances of alleged misconduct that the prosecutor's comments were fairresponse to defense counsel's summation (see People v McIver, 107 AD3d 1591, 1592 [2013], lvdenied 22 NY3d 997 [2013]; People v Roman, 85 AD3d 1630, 1632 [2011], lvdenied 17 NY3d 821 [2011]). With respect to the preserved instance of allegedmisconduct, we agree with defendant that the prosecutor improperly appealed to thejurors' sympathies (see People vFisher, 18 NY3d 964, 967 [2012]; People v Ballerstein, 52 AD3d 1192, 1194 [2008]), but weconclude that the court's prompt curative instruction was sufficient to alleviate anyprejudice to defendant (seePeople v Chatt, 77 AD3d 1285, 1287 [2010], lv denied 17 NY3d 793[2011]; People v Cooley, 50AD3d 1548, 1549 [2008], lv denied 10 NY3d 957 [2008]).
Defendant contends in his main and pro se supplemental briefs that he was deniedeffective assistance of counsel. Defendant's contentions regarding defense counsel'sfailure to conduct a proper investigation are based on information outside the record onappeal and must be raised by way of a motion pursuant to CPL 440.10 (see People v Russell, 83 AD3d1463, 1465 [2011], lv denied 17 NY3d 800 [2011]). Contrary to defendant'scontention, he was not denied effective assistance of counsel based on defense counsel'sfailure to request a bill of particulars (see People v Brink, 30 AD3d 1014, 1015 [2006], lvdenied 7 NY3d 810 [2006]), or failure to call an expert witness to testify (see People v Aikey, 94 AD3d1485, 1487 [2012], lv denied 19 NY3d 956 [2012]; People v Nelson, 94 AD3d1426, 1426 [2012], lv denied 19 NY3d 999 [2012]). We conclude on therecord before us that defendant received meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]).
Defendant contends in his pro se supplemental brief that the court erred in refusingto dismiss the indictment on the ground that the prosecutor allowed the victim to testifybefore the grand jury without determining her testimonial capacity. Inasmuch as"[d]efendant was convicted upon legally sufficient trial evidence, . . . hiscontention with respect to the competency of the evidence before the grand jury is notreviewable upon an appeal from the ensuing judgment of conviction" (People v Pulvino, 115 AD3d1220, 1221 [2014] [internal quotation marks omitted]; see People v Laws, 41 AD3d1205, 1206 [2007], lv denied 9 NY3d 991 [2007]). We reject defendant'sfurther contention in his pro se supplemental brief that the court abused its discretion inprecluding defendant from cross-examining witnesses regarding other allegations ofsexual abuse made by the victim (see People v Lane, 47 AD3d 1125, 1127-1128 [2008],lv denied 10 NY3d 866 [2008]; People v Smith, 281 AD2d 957, 958[2001], lv denied 96 NY2d 868 [2001]). "The preclusion of such questioningdoes not constitute an abuse of discretion where, as here, defendant made no showingthat the prior allegation[s were] false" (Smith, 281 AD2d at 958).
Finally, contrary to defendant's contention in his main brief, the sentence is notunduly harsh and severe. Present—Scudder, P.J., Centra, Fahey, Sconiers andValentino, JJ.