| People v Scott |
| 2015 NY Slip Op 02697 [126 AD3d 645] |
| March 31, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Andre Scott, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Analisa Torres, J.), rendered April 14,2011, convicting defendant, after a nonjury trial, of rape in the first degree, assault in thesecond degree, two counts of assault in the third degree, and two counts of aggravatedharassment in the second degree, and sentencing him, as a second violent felonyoffender, to an aggregate term of 20 years, unanimously affirmed. Order, same court(Abraham L. Clott, J.), entered January 9, 2014, which denied defendant's CPL 440.10motion to vacate the judgment, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's credibilitydeterminations, including its evaluation of the victim's delay in reporting the rape andany inconsistencies in her testimony.
The court properly denied defendant's CPL 440.10 motion, alleging a violation of thePeople's disclosure obligations. After defendant's conviction, the People disclosed a briefportion of a videotape that was made by a television network for a documentary film. Inthe videotape, two prosecutors discuss defendant's case, and express opinions on theanticipated difficulty of obtaining a conviction. In particular, a prosecutor expresses theopinion that the victim was "slow," and may not have understood that defendant'sconduct constituted rape. To the extent that these comments could be viewed as a sourceof impeachment material, we find that there was no reasonable possibility that timelydisclosure would have affected the outcome (see e.g. People v Fuentes, 12 NY3d259, 263-265 [2009]). This information was similar to impeachment materialavailable to defendant at trial, including a document he actually used incross-examination. Furthermore, the undisclosed video clip had little or no probativevalue on the issue of whether defendant actually had forcible sexual intercourse with thevictim, and his claim that this material could have led to significant impeachment isspeculative (see People vGarrett, 23 NY3d 878, 891-892 [2014]).
Defendant's claim that the court should have admitted a recording containing his ownexculpatory statement is unpreserved and expressly waived, and we decline to review itin the [*2]interest of justice. To the extent that defendantsought admission of the statement, he abandoned that request and accepted a differentremedy offered by the court. As an alternate holding, we find that defendant was notentitled to introduce his self-serving statement, and that, unlike the situation in Peoplev Carroll (95 NY2d 375, 385-387 [2000]), the People did not open the door toadmission of the statement.
Defendant failed to preserve his constitutional challenge to former Penal Law§ 240.30 (1) (a), which has been declared unconstitutional (see People v Golb, 23 NY3d455, 467-468 [2014]) and we decline to vacate his aggravated harassmentconvictions in the interest of justice. The unconstitutionality of a statute is not exemptfrom the requirement of preservation (see e.g. People v Dozier, 52 NY2d781 [1980]), and the fact that Golb is applicable to cases pending on appeal doesnot relieve defendant of that requirement. Although Golb had not yet beendecided at the time of defendant's trial, defendant had the same opportunity as thedefendant in Golb to raise the issue (see People v Stewart, 67 AD3d 553, 554 [2009],affd 16 NY3d 839 [2011]), and the argument that an "appellant should not bepenalized for his failure to anticipate the shape of things to come" is without merit(People v Reynolds, 25 NY2d 489, 495 [1969]; see also People v Hill, 85NY2d 256, 262 [1995]). Defendant has not demonstrated that the interest of justicewould be served by relieving him of these convictions.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Andrias,Saxe, Manzanet-Daniels and Kapnick, JJ.