| People v Smith |
| 2015 NY Slip Op 02638 [126 AD3d 1528] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEverton Smith, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), renderedApril 9, 2013. The judgment convicted defendant, upon a jury verdict, of course ofsexual conduct against a child in the first degree and rape in the third 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 course of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [b]) and rape in the third degree (§ 130.25[2]).
Contrary to defendant's contention, County Court did not err in admitting in evidencethe recording of the telephone conversation between defendant and the victim, togetherwith a transcript of that conversation. The conversation was relevant, and the probativevalue outweighed any prejudice inasmuch as defendant's statements constitute anacknowledgment of guilt (seegenerally People v Caban, 14 NY3d 369, 374-375 [2010]; People v McCullough, 117AD3d 1415, 1416 [2014], lv denied 23 NY3d 1040 [2014]). Defendantfailed to preserve for our review his contention that the evidence violated hisconstitutional right to due process and a fair trial. In any event, we conclude that thecontention is without merit.
We agree with defendant, however, that the court erred in admitting in evidence avideo recording of the police interview of defendant. Defendant did not make anyadmissions during the 1
Contrary to defendant's contention, viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude thatthe evidence is legally sufficient to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence in light ofthe elements of the crimes as charged to the jury, we conclude that the verdict is notagainst the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]; seegenerally Bleakley, 69 NY2d at 495). The victim testified to several specificincidents of rape between July 2007 and July 2008, when she was 12 years old, and toanother [*2]incident when she was 16 years old. During arecorded telephone conversation with the victim, defendant made inculpatory statements.The victim asked defendant several times to promise that he would stop having sex withher, and he responded, "I will stop," and "I promised." When the victim stated that he hadpromised in the past that he would stop, defendant stated, "I'm serious now." Defendanttold the victim during the telephone call to tell her mother that she had lied when she hadaccused defendant because the victim was angry with him for having a baby with anotherwoman and therefore did not pay attention to the victim.
Defendant contends that the court failed to rule on the sufficiency of his prima facieshowing that the People's exercise of a peremptory challenge was racially motivated.That contention is without merit inasmuch as "the sufficiency of the prima facie showingbecomes moot" after the People offer, as they did here, a race-neutral explanation for thechallenge (People v Baxter,108 AD3d 1158, 1159 [2013] [internal quotation marks omitted]; see People v Hecker, 15 NY3d625, 652 [2010]). It is well established that the court's ultimate determination thatthere was no discriminatory intent is entitled to deference, and we see no need to disturbthat determination here (seePeople v Newman, 71 AD3d 1509, 1509 [2010], lv denied 15 NY3d 754[2010]). We reject defendant's further contention that the court erred in granting thePeople's challenge for cause of a juror who provided an affirmative indication that shewould be uncomfortable judging another person (see generally People v Johnson,94 NY2d 600, 616 [2000]). Defendant exhausted his peremptory challenges andtherefore preserved for our review his contention that the court erred in denying hischallenge for cause of a prospective juror (see generally People v Thompson, 21 NY3d 555, 560[2013]). That prospective juror stated that she had a cousin who had been sexuallyabused by her father and that she was "hypersensitive" about the subject. She also statedthat she had not yet heard any information and was therefore not "leaning one way or theother." Following questioning by the court whether she could be fair and unbiased, theprospective juror replied, "I believe I am. I'm a fair person in general terms." Weconclude that, the juror's "statements here, taken in context and as a whole, wereunequivocal" with respect to her ability to be fair and impartial (People vChambers, 97 NY2d 417, 419 [2002]; see People v Odum, 67 AD3d 1465, 1465 [2009], lvdenied 14 NY3d 804 [2010], reconsideration denied 15 NY3d 755 [2010],cert denied 562 US 931 [2010]).
Defendant contends that he was denied effective assistance of counsel based upondefense counsel's failure to consult with or call a medical expert to challenge the People'sexpert regarding child abuse accommodation syndrome. To the extent that defendant'scontention involves matters that do not appear on the record, that contention must beraised by way of a CPL article 440 motion. To the extent that defendant's contention maybe reviewed, we conclude that it is without merit. Defense counsel effectivelycross-examined the People's expert, and his failure to call an expert witness does notconstitute ineffective assistance of counsel where, as here, " '[d]efendant has notdemonstrated that such testimony was available, that it would have assisted the jury in itsdetermination or that he was prejudiced by its absence' " (People v Kilbury, 83 AD3d1579, 1580 [2011], lv denied 17 NY3d 860 [2011]).
The sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra,Peradotto, Carni and Sconiers, JJ.