| People v Hatcher |
| 2015 NY Slip Op 05698 [130 AD3d 648] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gerald Hatcher, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, AnnBordley, Eunice Y. Lee, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Riviezzo, J.), rendered December 13, 2011, convicting him of rape in the first degree(four counts), sexual abuse in the second degree (four counts), sexual misconduct (fourcounts), and endangering the welfare of a child, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention regarding the testimony elicited from the People's expertas to why victims of sexual abuse or rape may delay in reporting the crime is unpreservedfor appellate review (see CPL 470.05 [2]; People v Ennis, 107 AD3d 1617 [2013]; People v Clas, 54 AD3d770 [2008]). In any event, the expert's testimony was properly offered for thepurpose of helping to explain the complainant's behavior after the subject rapes, whichwas not within the knowledge of the average juror (see People v Carroll, 95NY2d 375, 387 [2000]; Peoplev Torres, 78 AD3d 866 [2010]; People v Gillard, 7 AD3d 540, 541 [2004]). Contrary to thedefendant's contention, it was not inconsistent, under the circumstances, to allow thistestimony while also allowing evidence regarding the outcry the complainant made whenthe first suitable opportunity arose (see People v Shelton, 1 NY3d 614 [2004]; People vRice, 75 NY2d 929, 931 [1990]; People v Caban, 126 AD3d 808 [2015]).
The defendant's contention that his right to confrontation was violated (seeCrawford v Washington, 541 US 36 [2004]) is unpreserved for appellate review and,in any event, without merit (seePeople v Johnson, 127 AD3d 785 [2015]; People v Tucker, 117 AD3d 1090 [2014]; People v Fucito, 108 AD3d777 [2013]).
The defendant's contention that he was deprived of his right to a fair trial by certainremarks made by the prosecutor during summation is also unpreserved for appellatereview (see CPL 470.05 [2]; People v Clemente, 84 AD3d 829, 830-831 [2011]; People v Charles, 57 AD3d556, 556 [2008]; People vGill, 54 AD3d 965, 966 [2008]). In any event, the challenged remarks were faircomment on the evidence, permissible rhetorical comment, or responsive to the defensecounsel's summation (see People v Ashwal, 39 NY2d 105, 109-110[1976]).
[*2] Since he did not set forth the issueon the record at the time of sentencing, the defendant also failed to preserve for appellatereview his contention that the sentence imposed by the Supreme Court improperlypenalized him for exercising his right to a jury trial (see People v Hurley, 75NY2d 887 [1990]; People vSimmons, 29 AD3d 1024 [2006]). In any event, the Supreme Court did notimpermissibly punish him for exercising his right to proceed to trial by imposing asentence that was harsher than the one offered during plea negotiations (see People v Seignious, 114AD3d 883, 885 [2014]; People v Robinson, 84 AD3d 1277, 1277-1278 [2011];People v Price, 256 AD2d 596, 597 [1998]; cf. People v Simmons, 29 AD3d 1024 [2006]). Moreover,the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's contention that he was deprived of his constitutional right to theeffective assistance of counsel is based, in part, on matter appearing on the record and, inpart, on matter outside the record and, thus, constitutes a "mixed claim" of ineffectiveassistance (People vMaxwell, 89 AD3d 1108, 1109 [2011]). In this case, it is not evident from thematter appearing on the record that the defendant was deprived of the effective assistanceof counsel (see People vMcBride, 103 AD3d 920, 921 [2013]; People v Ropiza, 100 AD3d 935, 936 [2012]). Since thedefendant's claim of ineffective assistance of counsel cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).
The contentions raised in the defendant's pro se supplemental brief regarding theprosecution's alleged failure to correct allegedly false testimony are unpreserved forappellate review and, in any event, are without merit (see People v Clanton, 69 AD3d 754 [2010]). Dillon, J.P.,Leventhal, Cohen and Maltese, JJ., concur.