| People v Jemes |
| 2015 NY Slip Op 07373 [132 AD3d 1361] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Rudell J. Jemes, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), renderedSeptember 3, 2013. The judgment convicted defendant, upon a jury verdict, of rape inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofrape in the first degree (Penal Law § 130.35 [1]), defendant contends thatCounty Court erred in refusing to suppress the statements he made to the police and theDNA sample he provided at the police station because he was coerced, i.e., the policeconditioned his freedom on his willingness to provide them with the statements and theDNA sample. We reject that contention. The record demonstrates that defendantvoluntarily went to the police station, spoke with detectives about the allegations againsthim after being informed of his Miranda rights and waiving them, and voluntarilyprovided a DNA sample after being advised that he could refuse to do so. Although thedetectives prefaced the recitation of defendant's rights by stating that they wanted to heardefendant's "version of what happened" in order to "clear things up," and that defendantwould be free to leave after speaking with them, those statements did not "effectivelyvitiate[ ] or . . . neutralize[ ] the effect of the subsequently-deliveredMiranda warnings" (People v Dunbar, 24 NY3d 304, 316 [2014], cert denied575 US &mdash, 135 S Ct 2052 [2015]).
Defendant failed to preserve for our review his further contentions that the courterred in not instructing the jury on the voluntariness of his statements to the police, andin allowing the prosecutor to question the victim about her prior consistent statements(see CPL 470.05 [2]). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
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 his conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]), and we further conclude that, viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), the verdict is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495). The jury credited the testimony of the victimthat defendant had vaginal sexual intercourse with her by forcible compulsion, over herprotest, and that testimony was corroborated by the medical evidence. We see no reasonto disturb the jury's credibility determination in that regard, even though the juryapparently rejected the victim's testimony that defendant also penetrated her anally,because "the jury was entitled to assess the credibility of the [victim] and to credit certainparts of the victim's testimony while rejecting other parts" (People v Weaver, 302AD2d 872, 873 [2003], lv denied 99 NY2d 633 [2003]).
Defendant also contends that he was denied a fair trial by prosecutorial misconduct.[*2]Defendant failed to preserve his contention for ourreview with respect to the majority of the alleged instances of misconduct inasmuch asdefendant did not object to any of those alleged instances (see People v Paul, 78 AD3d1684, 1684-1685 [2010], lv denied 16 NY3d 834 [2011]), and we decline toexercise our power to review that alleged misconduct as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). We further conclude that the twoinstances of alleged prosecutorial misconduct preserved for our review, i.e, allegedlyleading questions asked of the victim and a summation comment that it was the "job of adefense attorney to try [to] trip up witnesses," were not so egregious or prejudicial as todeny defendant a fair trial (see e.g. People v DePillo, 262 AD2d 996, 997 [1999],lv denied 93 NY2d 1044 [1999]).
To the extent defendant contends that he was penalized for exercising his right to ajury trial, defendant failed to preserve that contention for our review (see People v Robinson, 104AD3d 1312, 1314 [2013], lv denied 21 NY3d 1008 [2013]), and we declineto exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Finally, we reject defendant's challenge to theseverity of the sentence. Present—Scudder, P.J., Smith, Lindley, Valentino andWhalen, JJ.