| People v Tucker |
| 2014 NY Slip Op 03872 [117 AD3d 1090] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gregory Tucker, Appellant. |
Stephen N. Preziosi, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andDiane R. Eisner of counsel), for respondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Kings County(Marrus, J.), rendered April 30, 2010, convicting him of rape in the first degree andcriminal sexual act in the first degree, upon a jury verdict, and imposing sentence, and(2), by permission, from an order of the same court dated April 10, 2012, which deniedhis motion pursuant to CPL 440.10 to vacate the judgment of conviction.
Ordered that the judgment and the order are affirmed.
The defendant's contention that his right to confrontation was violated (seeCrawford v Washington, 541 US 36 [2004]) is unpreserved for appellate review(see CPL 470.05 [2]; People v Shaulov, 107 AD3d 829 [2013]) and, in anyevent, is without merit (seePeople v Pitre, 108 AD3d 643, 644 [2013]; People v Rios, 102 AD3d 473, 475 [2013]).
The defendant failed to preserve for appellate review his contention that certaintestimony from the complaining witness's mother and sister did not fall within the scopeof the prompt outcry exception to the hearsay rule (see CPL 470.05 [2]; People v Batista, 92 AD3d793 [2012]). In any event, the testimony from the complaining witness's mother andsister concerning the nature of the complaint fell within the scope of the prompt outcryexception to the hearsay rule, and did not exceed the allowable level of detail (seePeople v Batista, 92 AD3d at 793-794; People v Bernardez, 63 AD3d 1174 [2009]; People vSalazar, 234 AD2d 322 [1996]). While testimony from those witnesses concerningthe complaining witness's identification of the defendant as the perpetrator should nothave been elicited, the error was harmless under the circumstances of this case (seePeople v Rice, 75 NY2d 929, 932 [1990]; People v Stalter, 77 AD3d 776, 777 [2010]).
The defendant was not deprived of the effective assistance of counsel, as defensecounsel provided meaningful representation (see People v Stultz, 2 NY3d 277, 287 [2004]; People vBenevento, 91 NY2d 708 [1998]).
The Supreme Court properly denied the defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction, which he made on the ground that a juror allegedlyrecognized [*2]him during the trial. The defendant'sassertion that he was not aware of the issue until after he was sentenced is refuted by therecord, and the defendant did not offer any explanation for his failure to raise the issueand make a record prior to the imposition of sentence (see People v White, 300AD2d 830, 832 [2002]; People v Berezansky, 229 AD2d 768, 771 [1996];People v Williams, 190 AD2d 590 [1993]). In any event, the defendant failed toestablish that he was prejudiced by the juror's alleged recognition of him, as the juror'saffidavit did not indicate that her recognition of the defendant from church had anyimpact on the verdict or that she had any negative opinion of him (see People v Artis, 90 AD3d1240, 1242 [2011]; People v Scoon, 303 AD2d 525, 526 [2003]). Thedefendant's related claim that reversal is warranted because the juror allegedly engaged inimproper communications with court officers is without merit (see People v Kelly, 5 NY3d116 [2005]; People vPeters, 98 AD3d 587 [2012]; People v Horney, 112 AD2d 841, 844[1985]). Skelos, J.P., Sgroi, Cohen and LaSalle, JJ., concur.