| People v Foulkes |
| 2014 NY Slip Op 03297 [117 AD3d 1176] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKenneth A. Foulkes, Appellant. |
Justin C. Brusgul, Voorheesville, for appellant.
James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel),forrespondent.
Garry, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered May 9, 2011, upon a verdict convicting defendant of the crimes of criminalsexual act in the second degree, forcible touching and endangering the welfare of achild.
In June 2010, defendant, then age 31, picked up the victim (born in 1995) from herhouse and drove her to the apartment where he lived with his fiancée, who is thevictim's older sister, and their infant daughter. The victim babysat the infant that eveningwhile defendant attended a meeting, and he later drove her home. The following evening,the victim communicated to her older brother that, when defendant returned from hismeeting the night before, he lay down on the bed next to her and engaged her in varioussexual acts; he kissed her, then removed articles of her clothing, sucked on her breasts,put her hand over his erect penis through his pants, and began to perform oral sex on her,stopping when she pushed his head away. Upon hearing this, and with the victim'sconsent, her brother contacted their father and the police. Defendant was thereaftercharged by indictment with criminal sexual act in the second degree, forcible touchingand endangering the welfare of a child. Following a jury trial, defendant was convictedas charged. He was later sentenced to a prison term of seven years, followed by 10 yearsof postrelease supervision, for the conviction of criminal sexual act in the second degree,and concurrent terms of one year for each of the other offenses. Defendantappeals.
[*2] Defendant contends that theconvictions are against the weight of the evidence because the victim's uncorroboratedtestimony was unworthy of belief and there was a lack of DNA evidence. As a differentverdict would not have been unreasonable, viewing the evidence in a neutral light, we"weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley,69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; accord People v Patterelli, 68AD3d 1151, 1152-1153 [2009]). Given the lack of physical evidence or witnesses,factors that are not uncommon in sexual assaults, the victim's testimony and credibilitywas a central issue for the jury—and after hearing defendant's contradictorytestimony, the jury found her credible (see People v Fernandez, 106 AD3d 1281, 1282-1283, 1285[2013]; see also People vRussell, 116 AD3d 1090, 1092 [2014]). According great deference to the jury's opportunity to view the victim'stestimony and assess her credibility, we do not find that defendant's conviction wasagainst the weight of the evidence (see People v Jabaut, 111 AD3d 1140, 1144 [2013], lvdenied 22 NY3d 1139 [2014]; People v Clairmont, 75 AD3d 920, 923 [2010], lvdenied 15 NY3d 919 [2010]; People v Caba, 66 AD3d 1121, 1122-1123 [2009]).
We are not persuaded by defendant's further contention that trial counsel providedineffective assistance by failing to adequately cross-examine the victim, and thusundermine her credibility. Considering the difficulties posed in cross-examining thisyoung victim and the potential for alienating the jury, defendant has failed to show "anabsence of strategic or other legitimate explanations for counsel's allegedly deficientconduct" (People v Lapi,105 AD3d 1084, 1086 [2013], lv denied 21 NY3d 1043 [2013] [internalquotation marks and citations omitted]; see People v Izzo, 104 AD3d 964, 967 [2013], lvdenied 21 NY3d 1005 [2013]; People v Hemingway, 85 AD3d 1299, 1302-1303 [2011]).Nor do we find that counsel's failure to object to the People's summation constitutedineffective assistance. The challenged remarks, made in response to defense counsel'ssummation, did not exceed the limits of fair comment on the evidence and were not soflagrant or pervasive as to deprive defendant of a fair trial (see People v Jabaut,111 AD3d at 1146-1147; Peoplev Lamont, 21 AD3d 1129, 1131-1132 [2005], lv denied 6 NY3d 835[2006]; People v Graham, 161 AD2d 836, 838 [1990], lv denied 76NY2d 788 [1990]).
Defendant's sentence is not harsh or excessive. The fact that the sentence imposed islonger than one rejected during plea negotiations does not establish that defendant waspunished for exercising his constitutional right to trial (see People v Izzo, 104AD3d at 968; People vSapienza, 91 AD3d 988, 989 [2012]). Further, County Court's imposition of themaximum possible term of postrelease supervision is well supported, considering thenature of the crime, defendant's prior criminal history, and his failure to acceptresponsibility or express remorse for his actions. We find no abuse of discretion by thesentencing court or extraordinary circumstances warranting modification (see People v Watson, 115AD3d 1016, 1017 [2014]; People v Jaeger, 96 AD3d 1172, 1175 [2012], lvdenied 19 NY3d 997 [2012]).
Lahtinen, J.P., Stein and Rose, JJ., concur. Ordered that the judgment isaffirmed.