| People v Chrisley |
| 2015 NY Slip Op 02614 [126 AD3d 1495] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJohn R. Chrisley, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of counsel), fordefendant-appellant.
John R. Chrisley, defendant-appellant pro se.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered September 3, 2013. The judgment convicted defendant, upon a jury verdict, ofsexual abuse in the first degree (two counts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of,inter alia, two counts of sexual abuse in the first degree (Penal Law§ 130.65 [3]), defendant contends in his main brief that County Courtabused its discretion in allowing the People to present evidence that, on a date prior tothe incidents charged in the indictment, he had a wet spot on the crotch area of his pantsafter the then four-year-old victim had been sitting on his lap. We reject that contention."Evidence of uncharged crimes may be admissible if it is relevant to establish someelement of the crime under consideration or if it falls within one of the recognizedexceptions to the general rule precluding such evidence, i.e., it is relevant to demonstratemotive, intent, absence of mistake or accident, a common scheme or plan, or the identityof defendant" (People vRay, 63 AD3d 1705, 1706 [2009], lv denied 13 NY3d 838 [2009];see People v Ventimiglia, 52 NY2d 350, 359 [1981]; People v Molineux,168 NY 264, 293-294 [1901]), provided that "its probative value exceeds the potentialfor prejudice resulting to the defendant" (People v Alvino, 71 NY2d 233, 242[1987]). Here, the Molineux evidence admitted by the court was relevant to theissue of intent, i.e., whether defendant's subsequent touching of the victim's intimateparts was for the purpose of gratifying his sexual desire. Moreover, given that defendantsuggested to the police that his touching of the victim was inadvertent, the evidence wasrelevant to establish the absence of mistake. We further conclude that "the probativevalue of the evidence was not outweighed by its prejudicial effect, and the court'slimiting instruction minimized any prejudice to defendant" (People v Washington, 122AD3d 1406, 1408 [2014]).
Defendant failed to preserve for our review his further contention in his main and prose supplemental briefs that he was deprived of a fair trial by prosecutorial misconduct onsummation (see CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912 [2006]). In any event,most of the comments complained of by defendant were proper, and any impropercomments were not so pervasive or egregious as to deprive defendant of a fair trial (see People v Heck, 103 AD3d1140, 1143 [2013], lv denied 21 NY3d 1074 [2013]).
Defendant failed to preserve for our review his further contention in his main briefthat the evidence is legally insufficient to support the sexual abuse charges because thePeople failed to establish that he acted for the purpose of gratifying his sexual desires(see People v Gray, 86 NY2d 10, 19 [1995]; People v Washington, 89 AD3d 1516, 1517 [2011], lvdenied 18 NY3d 963 [2012]). In any event, defendant's contention lacks meritinasmuch as the element of sexual gratification may be [*2]inferred from defendant's conduct (see People v Willis, 79 AD3d1739, 1740 [2010], lv denied 16 NY3d 864 [2011]; People v Graves, 8 AD3d1045, 1045 [2004], lv denied 3 NY3d 674 [2004]). Moreover, viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). ThePeople's case rested largely on the credibility of the victim and, notwithstanding minorinconsistencies in the victim's testimony, there is no basis in the record for us to disturbthe jury's determination to credit the victim's testimony (see generally People vChildres, 60 AD3d 1278, 1279 [2009], lv denied 12 NY3d 913 [2009])."Sitting as the thirteenth juror . . . [and] weigh[ing] the evidence in light ofthe elements of the crime[s] as charged to the other jurors" (Danielson, 9 NY3d at349), we conclude that, although a different verdict would not have been unreasonable, itcannot be said that the jury failed to give the evidence the weight it should be accorded(see generally Bleakley, 69 NY2d at 495; People v Kalen, 68 AD3d 1666, 1666-1667 [2009], lvdenied 14 NY3d 842 [2010]).
Finally, we reject defendant's contention in his main brief that the sentence is undulyharsh and severe. Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen,JJ.