| People v Martinez |
| 2015 NY Slip Op 03408 [127 AD3d 606] |
| April 23, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Martin Martinez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), renderedDecember 16, 2011, as amended December 23, 2011 and January 4, 2012, convictingdefendant, after a jury trial, of predatory sexual assault against a child, sexual abuse inthe first degree, and endangering the welfare of a child, and sentencing him to anaggregate term of 18 years to life, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). The evidence established theelements of each of the crimes at issue. There is no basis for disturbing the jury'scredibility determinations, including its evaluation of inconsistencies in the victim'stestimony and her delay in reporting the full details of her father's unlawful sexualconduct. Furthermore, other family members made observations that tended tocorroborate the victim's testimony.
Defendant's claim that his counsel rendered ineffective assistance by failing torequest submission of a lesser included offense is unreviewable on direct appeal becauseit involves matters not reflected in, or fully explained by, the record (see People vLove, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL440.10 motion, the merits of this claim may not be addressed on appeal. In thealternative, to the extent the existing record permits review, we find that defendantreceived effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). Defendant has not shown that counsel's failure to request thesubmission was objectively unreasonable, that he was entitled to such submission, or thatthere is a reasonable possibility that such submission would have affected the outcome ofthe case.
The court properly received evidence of an incident that occurred while the familywas on a vacation as direct evidence of the endangering the welfare of a child count,although it occurred two months after the time period had ended for the charge ofpredatory sexual assault against a child. Additionally, this evidence was properlyadmitted as uncharged crimes evidence relevant to the predatory sexual assault count, inorder to complete the victim's narrative, place the events [*2]in a believable context and explain the victim's delay inreporting defendant's conduct (see People v Leeson, 12 NY3d 823, 827 [2009]; People v Dorm, 12 NY3d16, 19 [2009]).
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P.,Andrias, Manzanet-Daniels and Clark, JJ.