| People v Streeter |
| 2014 NY Slip Op 04304 [118 AD3d 1287] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vParish M. Streeter, Appellant. |
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), fordefendant-appellant.
Parish M. Streeter, defendant-appellant pro se.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedSeptember 10, 2012. The judgment convicted defendant, upon a jury verdict, ofpredatory sexual assault against a child (two counts), sexual abuse in the second degree,criminal sexual act in the second degree, attempted coercion in the first degree andcriminal contempt in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of two counts of predatory sexual assault against a child (Penal Law§ 130.96), sexual abuse in the second degree (§ 130.60 [2]),criminal sexual act in the second degree (§ 130.45 [1]), attempted coercionin the first degree (§§ 110.00, 135.65 [1]), and criminal contempt inthe second degree (§ 215.50 [3]). The charges for the sexual crimes arosefrom allegations that defendant touched the complainant's vagina with his fingers andthen, on three separate occasions, had oral contact with her vagina. The sexual contacttook place when the victim was 12 and 13 years old.
We reject defendant's contention that the evidence is legally insufficient to supportthe conviction. The absence of scientific or medical evidence corroborating thecomplainant's testimony, as noted by defendant, is not dispositive, particularly where, ashere there was no penetration, defendant did not ejaculate, and the crimes were notimmediately reported to the police. Indeed, this case turned largely upon the credibility ofthe complainant and defendant, who testified in his own defense and denied theallegations. The jury credited the testimony of the complainant and, contrary todefendant's contention, her testimony was not "incredible as a matter of law," i.e.,"manifestly untrue, physically impossible, contrary to experience, or self-contradictory"(People v Ponzo, 111 AD3d1347, 1348 [2013] [internal quotation marks omitted]; see People v Bush, 107 AD3d1581, 1582 [2013], lv denied 22 NY3d 954 [2013]). Viewing the evidencein the light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that " 'there is a valid line of reasoning and permissibleinferences from which a rational jury could have found the elements of the crime[s]proved beyond a reasonable doubt' " (People v [*2]Danielson, 9 NY3d342, 349 [2007]; see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Furthermore, viewing the evidence in light of the elements of the crimes as chargedto the jury (see Danielson, 9 NY3d at 349), we reject defendant's furthercontention that the verdict is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). In support of his weight of the evidence contention,defendant asserts that his alibi witnesses, all of whom have felony records, were morecredible than the People's witnesses. Where, as here, " 'witness credibility is ofparamount importance to the determination of guilt or innocence,' " we must givegreat deference to the jury, given its opportunity to view the witnesses and observe theirdemeanor (People v Scott,107 AD3d 1635, 1636 [2013], lv denied 21 NY3d 1077 [2013]; see People v Roman, 107AD3d 1441, 1442-1443 [2013], lv denied 21 NY3d 1045 [2013]; People v Allen, 93 AD3d1144, 1147 [2012], lv denied 19 NY3d 956 [2012]). We perceive no basis inthe record for us to substitute our credibility determinations for those of the jury.
Defendant next contends that County Court erred in allowing the People to call arebuttal witness who was present in court when defendant testified. Because the court didnot issue a sequestration order, however, there was no basis to preclude the rebuttalwitness from taking the stand. Moreover, it cannot be said that the court abused itsdiscretion in failing "to exclude witnesses from the courtroom while other witnesses aretestifying" (People v Santana, 80 NY2d 92, 100 [1992]; see People v Baker, 14 NY3d266, 274 [2010]).
Defendant contends in his pro se supplemental brief that he was deprived of effectiveassistance of counsel because, among other reasons, his attorney failed to call witnessesat trial who could have provided testimony that was helpful to him. That contention isbased primarily on matters outside the record and must be raised pursuant to a CPL440.10 motion (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Merritt, 115 AD3d1250, 1251 [2014]). We have reviewed defendant's remaining contentions in hismain and pro se supplemental briefs and conclude that they lack merit.Present—Centra, J.P., Fahey, Peradotto, Lindley and Valentino, JJ.