| People v Thompson |
| 2014 NY Slip Op 05564 [119 AD3d 966] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Michael E. Thompson, Jr., Appellant. |
Randall Richards, Bronxville, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Steven A.Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered April 25, 2012, convicting him of rape in the first degree, assault inthe second degree (three counts), menacing in the second degree, and endangering thewelfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with rape in the first and third degrees, and menacing inthe second degree with respect to a woman. In the same indictment, the defendant wascharged with three counts of assault in the second degree and one count of endangeringthe welfare of a child as to the woman's six-year-old son. The trial court denied thedefendant's motion to sever the charges with respect to the child from those relating tothe mother.
Contrary to the defendant's contention, the charges were properly joined on theground that proof of each offense was material and admissible as evidence in chief of theother offenses (see CPL 200.20 [2] [b]; see also People v Munger, 24NY2d 445, 448-449 [1969]; People v Conroy, 102 AD3d 979, 980 [2013]; People vGriffin, 132 AD2d 569, 569-570 [1987]).
In addition, the trial court did not improvidently exercise its discretion in admittingexpert testimony regarding battered women's syndrome (see People v Carroll, 95NY2d 375, 387 [2000]; Peoplev Roblee, 83 AD3d 1126, 1128 [2011]; People v Smith, 9 AD3d 745, 747 [2004]; see also People v Gillard, 7AD3d 540 [2004]). The court did not allow the expert to offer an opinion as towhether the conduct at issue constituted domestic violence, or to testify regarding anyprior bad acts by the defendant. Instead, the expert described the general behaviorpatterns of domestic violence perpetrators and victims in order to explain behaviors of abattered woman that might be beyond the ken of the average juror (see People vRoblee, 83 AD3d at 1128; People v Carroll, 95 NY2d at 387).
Likewise, the trial court did not improvidently exercise its discretion in admittingtestimony from two of the complainant's coworkers as to bruising that they had observedon the complainant's face. This testimony was relevant to the charged offense ofmenacing in the second degree (see Penal Law § 120.14 [2];Matter of Luis A., 223 AD2d 505, 506 [1996]).
[*2] The defendant's objection to the trial court's taking ofthe sworn testimony of the child, who was seven years old at the time, is unpreserved forappellate review (see CPL 470.05 [2]; People v Batista, 92 AD3d 793 [2012]; People v Gillard, 7 AD3d540, 541 [2004]; People v Rouff, 163 AD2d 338, 339 [1990]). In any event,the child's sworn testimony was properly admitted after a sufficient inquiry by the courtin which the child established that he understood the nature of an oath and the differencebetween the truth and a lie, and he promised to tell the truth to the court (see CPL60.20 [2]; People v Morales, 80 NY2d 450, 452-453 [1992]; People vNisoff, 36 NY2d 560, 566 [1975]; People v Brown, 89 AD3d 1473, 1474 [2011]).
The defendant also contends that the verdict of guilt as to rape in the first degree(Penal Law § 130.35 [1]) was against the weight of the evidence. Infulfilling our responsibility to conduct an independent review of the weight of theevidence (see People vDanielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference tothe jury's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict ofguilt as to that charge was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the verdict was repugnant because the jury convictedhim of rape in the first degree concerning events which occurred on November 6, 2010,but acquitted him of rape in the third degree based on the same events, is unpreserved forappellate review because he failed to make this argument before the jury was discharged(see CPL 470.05 [2]; People v Satloff, 56 NY2d 745, 746 [1982];People v Stahl, 53 NY2d 1048, 1050 [1981]; People v Hall, 56 AD3d 798, 798 [2008]). In any event, thecontention is without merit (seePeople v Evans, 79 AD3d 454, 455 [2010]; see generally People vTucker, 55 NY2d 1, 8 [1981]).
The sentence imposed was not excessive (see People v Delgado, 80 NY2d780, 783 [1992]; People v Thompson, 60 NY2d 513, 519 [1983]; People vSuitte, 90 AD2d 80, 85-86 [1982]).
The defendant failed to preserve for appellate review his contention that the sentencethe Supreme Court imposed improperly penalized him for exercising his right to a jurytrial, because he did not set forth the issue on the record at the time of sentencing (seePeople v Hurley, 75 NY2d 887, 888 [1990]; People v Romero, 101 AD3d 906, 907 [2012]). In anyevent, this contention is without merit (see People v Romero, 101 AD3d at 907).Chambers, J.P., Austin, Hinds-Radix and Duffy, JJ., concur.