| People v Kimmy |
| 2016 NY Slip Op 02246 [137 AD3d 1723] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Corey T. Kimmy, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
David W. Foley, District Attorney, Mayville (Andrew M. Molitor of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered March 26, 2012. The judgment convicted defendant, upon a jury verdict, ofattempted kidnapping in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, ofattempted kidnapping in the second degree (Penal Law §§ 110.00,135.20), defendant contends that he was deprived of his right to present a defense when,during defense counsel's summation, County Court instructed the jury to disregard acomment made by defense counsel that was central to the defense. Defendant failed topreserve that contention for our review (see CPL 470.05 [2]). In any event, weconclude that any error in the court's instruction is harmless inasmuch as the courtimmediately thereafter "permitted defendant to make the same point, expressed indifferent language" (People v Vasquez, 288 AD2d 17, 17 [2001], lv denied97 NY2d 734 [2002]).
We also reject defendant's related contention that he was deprived of his right topresent a defense when, during cross-examination of a prosecution witness, the courtprecluded defense counsel from referring to the initial police description of the incidentas an assault or an attempted assault, as opposed to an attempted kidnapping. The initialdescription of the incident was given before defendant was arrested and policeinvestigation was complete and thus was irrelevant to the issues to be determined by thejury. Defense counsel was not otherwise prevented from asserting that defendantcommitted nothing more than a mere assault. Indeed, that argument was made repeatedlyat trial by defense counsel.
Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to establish that he attempted to kidnap the victim inasmuch as his motion fora trial order of dismissal was not directed at that alleged defect in the proof (seegenerally People v Gray, 86 NY2d 10, 19 [1995]). In any event, we reject thatcontention. The evidence at trial established that defendant left his vehicle running in themiddle of the street, with the door open, and grabbed and assaulted the 13-year-oldvictim in a sexual manner as she tried to ride her bicycle around him. Althoughdefendant, who had been seen "cruising" the neighborhood at the same time of day in thetwo weeks prior to the crime, ran away when the victim resisted and yelled for help, helater gave a statement to police that he intended to "take" the victim "depending on howshe reacted" to his assault. Viewing the evidence in the light most favorable to thePeople, as we must (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that there is a valid line of reasoning and permissible inferences that could leada rational person to the conclusion reached by the jury based on the evidence at trial, i.e.,that defendant attempted to kidnap the victim (see generally People v Bleakley,69 NY2d 490, 495 [1987]). We further conclude that the verdict is not against the weightof the evidence (see generally id.). Viewing the evidence in light of the elementsof the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we[*2]conclude that it cannot be said that the jury failed togive the evidence the weight it should be accorded (see generally People v Ohse, 114 AD3d 1285, 1286-1287[2014], lv denied 23 NY3d 1041 [2014]).
We have reviewed defendant's remaining contentions and conclude that nonerequires reversal or modification of the judgment. Present—Peradotto, J.P.,Lindley, DeJoseph, Curran and Scudder, JJ.