| People v Drake |
| 2016 NY Slip Op 03288 [138 AD3d 1396] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTerry L. Drake, Appellant. (Appeal No. 1.) |
Genesee Valley Legal Aid, Inc., Geneseo (Jeannie D. Michalski of counsel), fordefendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.),rendered June 24, 2010. The judgment convicted defendant, upon a jury verdict, ofcourse of sexual conduct against a child in the first degree and incest in the third degree(two counts).
It is hereby ordered that said appeal from the judgment insofar as it imposed sentenceon the conviction of two counts of incest in the third degree is unanimously dismissedand the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of course of sexual conduct against a child in the first degree (PenalLaw § 130.75 [1] [a]) and two counts of incest in the third degree(§ 255.25). In appeal No. 2, defendant appeals from a resentence involvingthe two counts of incest. We note, however, that defendant raises no contention withrespect to the resentence in appeal No. 2, and we therefore dismiss the appeal therefrom(see People v Minemier,124 AD3d 1408, 1408 [2015]).
Contrary to defendant's contention, he implicitly waived his rights under People vAntommarchi (80 NY2d 247 [1992], rearg denied 81 NY2d 759 [1992])during jury selection when, after being advised by County Court that he had the right toattend bench conferences, he chose not to do so (see People v Flinn, 22 NY3d 599, 601 [2014], reargdenied 23 NY3d 940 [2014]). In any event, we note that the bench conference atissue resulted in a juror being dismissed for cause. It is well settled that, "even where adefendant has been erroneously excluded from a sidebar conference with a prospectivejuror, the error is not reversible if that potential juror has been excused for cause by thecourt" (People v Maher, 89 NY2d 318, 325 [1996]).
Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence inasmuch as he made only a general motion for atrial order of dismissal rather than one specifically directed at the alleged deficiency inthe People's proof (see People vHawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19[1995]). In any event, defendant's contention lacks merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). In addition, viewing the evidence in light ofthe elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). Defendant's contention that the evidence before thegrand jury was legally insufficient with respect to counts two and three of the indictment"is not reviewable upon an appeal from an ensuing judgment of conviction based uponlegally sufficient trial evidence" (CPL 210.30 [6]; see People v Lee, 56 AD3d 1250, 1251 [2008], lvdenied 12 NY3d 818 [2009]).
We reject defendant's further contention that his written statement given to the policeshould have been suppressed because he allegedly has minimal reading skills and thestatement was not read to him by the police. The court was free to credit the testimony ofthe police officers to the contrary (see People v Daley, 207 AD2d 1000,1000-1001 [1994], lv denied 84 NY2d 1010 [1994]), and the record establishesthat defendant was able to read the statement that he gave to the police (see People vFontanez, 278 AD2d 933, 934 [2000], lv denied 96 NY2d 862 [2001]).
Defendant contends that the court abused its discretion in denying his application tocross-examine the victim about two alleged prior false accusations of misconduct madeagainst others. We conclude that the victim's prior allegation of verbal harassmentperpetrated against her by another person, even if false, "fails to suggest a pattern castingsubstantial doubt on the validity of the present charges" or to "indicate a significantprobative relation to such charges" (People v Blackman, 90 AD3d 1304, 1310 [2011], lvdenied 19 NY3d 971 [2012] [internal quotation marks omitted]). With respect to thecomplaint the victim made to the police against another person for allegedly calling hernames in a department store, we conclude that defendant was attempting to attack thevictim's credibility with a specific instance of alleged untruthfulness—a tactic thatis per se improper (see People vArroyo, 37 AD3d 301, 301-302 [2007], lv denied 9 NY3d 839 [2007]).Nor was the victim's complaint to the police shown to be an act of misconduct affectingher credibility (see People v Jones, 115 AD2d 302, 302-303 [1985]). We thusconclude that the court did not abuse its discretion in denying defendant'sapplication.
Defendant failed to preserve for our review his contention that the court erred inadmitting the testimony of the People's expert on child sexual abuse accommodationsyndrome (see People vEnglert, 130 AD3d 1532, 1533 [2015], lv denied 26 NY3d 967 [2015]).In any event, that contention is without merit. It is well settled that such testimony isadmissible to explain the behavior of child sex abuse victims as long as it is general innature and does not constitute an opinion that a particular alleged victim is credible orthat the charged crimes in fact occurred (see People v Williams, 20 NY3d 579, 583-584 [2013]; People v Gayden, 107 AD3d1428, 1428-1429 [2013], lv denied 22 NY3d 1138 [2014]). We havereviewed defendant's claims of ineffective assistance of counsel and conclude that theyare without merit (see generallyPeople v Caban, 5 NY3d 143, 152 [2005]; People v Baldi, 54 NY2d137, 147 [1981]). Defendant failed to preserve for our review his contention that he wasdenied a fair trial by prosecutorial misconduct on summation (see CPL 470.05[2]). In any event, we conclude that his contention lacks merit (see generally People vHalm, 81 NY2d 819, 821 [1993]).
We have reviewed defendant's remaining contentions and conclude that they arewithout merit. Present—Whalen, P.J., Smith, Carni, NeMoyer and Curran, JJ.