| People v Barnes |
| 2016 NY Slip Op 04343 [140 AD3d 443] |
| June 7, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Julius T. Barnes, Appellant. |
The Law Office of Stephen N. Preziosi, P.C., New York (Stephen N. Preziosi ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Julia L. Chariott of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered January 2,2013, as amended February 5, 2013, convicting defendant, after a jury trial, of sexualabuse in the first degree and two counts of endangering the welfare of a child, andsentencing him to an aggregate term of two years, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations.
Defendant was convicted of sex offenses against a young girl in connection with twoincidents, one occurring between February and April 2009, and the other on November20, 2009. Although the victim's trial testimony was less detailed than the statementsmade shortly after the incidents, which occurred three years before trial, when she waseight years old, her trial testimony supports a reasonable inference that defendantengaged in conduct satisfying the elements of first-degree sexual abuse. Moreover, thecourt properly admitted medical records and testimony, describing the two incidents indetail, that qualified for admission under the business records exception to the hearsayrule because the statements memorialized in the records were relevant to diagnosis andtreatment (see People vOrtega, 15 NY3d 610 [2010]).
A detective's brief mention of the victim's disclosure of the February-April incidentshould not have been allowed because the disclosure was insufficiently prompt to qualifyunder the prompt outcry exception. However, the error was harmless, particularlybecause this evidence was cumulative to the properly admitted medical evidence.Defendant did not preserve his challenge to prompt outcry evidence regarding theNovember 20th incident, and we decline to review it in the interest of justice. As analternative holding, we find that the testimony of the mother and the detective containeddetail that exceeded the limits of proper prompt outcry testimony, but that this evidencewas likewise cumulative to the medical evidence and that its admission was likewiseharmless.
Defendant's Confrontation Clause argument regarding the victim's testimony andout-of-court statements is also unpreserved, and we decline to review it in the interest ofjustice. As an alternative holding, we find it to be without merit because the victimtestified appear at trial and defense counsel had a full opportunity to cross-examine her.The order of proof at trial had no impact on defendant's right of confrontation, becausehe could have requested to recall the victim for additional cross-examination aboutmatters introduced at a later stage of the People's case.
We have considered and rejected defendant's ineffective assistance of counsel claimsrelating to the issues we have found to be unpreserved (see People v Benevento,91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).Defendant has not shown that he was prejudiced under the state and federal standards byhis counsel's failure to object in any of [*2]thoseinstances. Accordingly, we do not find that any lack of preservation may be excused onthe ground of ineffective assistance, or that his ineffective assistance claim warrants anew trial. Concur—Tom, J.P., Sweeny, Moskowitz, Richter and Gesmer, JJ.