| People v Wallace |
| 2014 NY Slip Op 09158 [123 AD3d 1151] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Carl Wallace, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Buchter, J.), rendered July 15, 2011, convicting him of rape in the first degree, robberyin the third degree, and unlawful imprisonment in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contentions that he was deprived of a fair trial by the admission ofcertain evidence regarding the complainant's medical examination and treatment inconnection with her rape allegations and other actions that she took after the incident arelargely unpreserved for appellate review, as the defendant failed to raise timely, specificobjections to the admission of this evidence (see CPL 470.05 [2]). In any event,the trial court did not improvidently exercise its discretion in permitting the prosecutor topresent the majority of the challenged evidence because it was relevant and its probativevalue outweighed its potential for unfair prejudice (see People v Scarola, 71NY2d 769, 777 [1988]). To the extent that the admission of certain testimony concerningthe medication prescribed to the complainant after the rape and the resulting side effectsmay have been improper, the introduction of such testimony was harmless, as theevidence of the defendant's guilt was overwhelming and there is no significantprobability that this testimony contributed to the convictions (see People vCrimmins, 36 NY2d 230, 241-242 [1975]). Furthermore, the introduction of thistestimony did not deprive the defendant of a fair trial.
The defendant's contention that the prosecutor made improper remarks during voirdire about the presumption of innocence is unpreserved for appellate review, as he eitherfailed to object to the remarks he now challenges or made only general objections (see People v Romero, 7 NY3d911, 912 [2006]; People vRahman, 119 AD3d 820 [2014]). In any event, the prosecutor's remarksregarding the presumption of innocence were not patently improper or unduly prejudicial(see People v Dashosh, 59AD3d 731 [2009]; cf.People v Slishevsky, 97 AD3d 1148, 1150 [2012]). Contrary to the defendant'scontention, the challenged remarks did not misstate the law, they were directed to thepertinent issues of whether the prospective jurors could render an impartial verdict andfollow the court's instructions (see People v Pepper, 59 NY2d 353, 358 [1983]),and, taken as a whole, they did not undermine or [*2]disparage the presumption of innocence (cf. People vAlfaro, 260 AD2d 495, 496 [1999]; People v Bussey, 62 AD2d 200, 203-204[1978]).
The defendant's claims that the prosecutor engaged in improper questioning andmade improper remarks during the opening statement and summation are, for the mostpart, unpreserved for appellate review, as he either did not object to the questioning orremarks at issue, made only general objections, or failed to request further curative reliefon the specific grounds now asserted on appeal when the trial court sustained hisobjections (see CPL 470.05 [2]; People v Ambers, 115 AD3d 671, 672 [2014], lvgranted 23 NY3d 1059 [2014]; People v Jorgensen, 113 AD3d 793, 794 [2014], lvgranted 23 NY3d 1063 [2014]; People v Tomlinson, 67 AD3d 826 [2009]; People v Salnave, 41 AD3d872, 874 [2007]). In any event, the challenged questions and remarks do not warrantreversal (see People vSantiago, 82 AD3d 1271, 1272 [2011]; People v Tomlinson, 67 AD3d at826; People v Dashosh, 59 AD3d at 731). The prosecutor's conduct duringcross-examination was not improper (see People v Quezada, 116 AD3d 796, 797 [2014]), thechallenged portion of the opening statement was not improper since it served tointroduce the People's theory of the case, and was consistent with the evidence theyproceeded to present (see People v Jorgensen, 113 AD3d at 795), and thechallenged summation remarks were either fair response to the defense summation(see People v Galloway, 54 NY2d 396, 399 [1981]) or were not so flagrant orpervasive as to deny the defendant a fair trial (see People v Jorgensen, 113 AD3dat 795).
Defense counsel's failure to object to the alleged evidentiary errors and challengedquestions and remarks did not constitute ineffective assistance of counsel (see People v Ennis, 11 NY3d403, 415 [2008]; People vMcGowan, 111 AD3d 850, 851 [2013]; People v Brown, 106 AD3d 754 [2013]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Skelos, J.P., Dickerson, Austin and Maltese, JJ., concur.