| People v Black |
| 2015 NY Slip Op 00121 [124 AD3d 1365] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJohn M. Black, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski,A.J.), rendered July 10, 2012. The judgment convicted defendant, upon a jury verdict, ofpredatory sexual assault against a child (two counts), incest in the first degree (twocounts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, two counts of predatory sexual assault against a child (Penal Law§ 130.96). Defendant contends that the verdict is against the weight of theevidence because neither the victim's testimony nor defendant's admissions to the policewere credible. We reject that contention. Even assuming, arguendo, that a differentverdict would not have been unreasonable, we note that "the jury was in the best positionto assess the credibility of the witnesses and, on this record, it cannot be said that the juryfailed to give the evidence the weight it should be accorded" (People v Orta, 12 AD3d1147, 1147 [2004], lv denied 4 NY3d 801 [2005]; see People v McCray, 121AD3d 1549, 1552 [2014]). Viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that Supreme Court erred in admitting in evidence thevictim's sexual assault examination report because defendant was unable to confront thenurse examiner who prepared the report. That contention is unpreserved for our review,however, inasmuch as defendant failed to object to the report at trial (see CPL470.05 [2]; People vSnyder, 100 AD3d 1367, 1369 [2012], lv denied 21 NY3d 1010 [2013]),and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]). Contrary to the furthercontention of defendant, we conclude that defense counsel was not ineffective in failingto object to the report because, under the circumstances of this case, the decision not toobject was consistent with a legitimate trial strategy (see generally People vBenevento, 91 NY2d 708, 712-713 [1998]).
We agree with defendant that certain comments made by the prosecutor duringsummation were improper, including an impermissible "safe streets" argument (see People v Scott, 60 AD3d1483, 1484 [2009], lv denied 12 NY3d 859 [2009]; People vNevedo, 202 AD2d 183, 185 [1994]; People v Hanright, 187 AD2d 1021,1021 [1992], lv denied 81 NY2d 840 [1993]). We conclude, however, that theprosecutor's comments "were not so pervasive or egregious as to deprive defendant of afair trial" (People v Jones,114 AD3d 1239, 1241 [2014], lv denied 23 NY3d 1038 [2014] [internalquotation marks omitted]; see Hanright, 187 AD2d at 1021). Thus, contrary tothe further contention of defendant, the "failure to object to those comments does notconstitute ineffective assistance of counsel" (People v Nicholson, 118 AD3d 1423, 1425 [2014]).
Finally, defendant contends that the People's expert was improperly allowed to testifythat the victim made a credible complaint of sexual abuse. We reject that contention,inasmuch as the testimony of the expert, who had never met defendant or the victim, was"general in nature and d[id] not attempt to impermissibly prove that the charged crimesoccurred" (People vGayden, 107 AD3d 1428, 1428 [2013], lv denied 22 NY3d 1138 [2014][internal quotation marks omitted]; see People v Williams, 20 NY3d 579, 584 [2013]; People v Olson, 110 AD3d1373, 1376 [2013], lv denied 23 NY3d 1023 [2014]). Present—Smith,J.P., Peradotto, Carni, Valentino and DeJoseph, JJ.