| People v Symonds |
| 2016 NY Slip Op 04590 [140 AD3d 1685] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vFrederick Symonds, Jr., Appellant. |
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of counsel),for defendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.),rendered March 11, 2014. The judgment convicted defendant, upon a jury verdict, ofcriminal sexual act in the third degree and incest in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of criminal sexual act in the third degree (Penal Law § 130.40 [2])and two counts of incest in the third degree (§ 255.25). Defendant failed topreserve for our review his contention that he was deprived of a fair trial by prosecutorialmisconduct, on summation and otherwise (see People v Mull, 89 AD3d 1445, 1446 [2011], lvdenied 19 NY3d 965 [2012]). We conclude in any event that defendant's contentionlacks merit. The complained-of remarks on summation were "not so egregious as todeprive defendant of a fair trial" (People v Wittman, 103 AD3d 1206, 1207 [2013], lvdenied 21 NY3d 915 [2013]; see People v Eldridge, 288 AD2d 845, 845-846[2001], lv denied 97 NY2d 681 [2001]). Moreover, we conclude that theprosecutor did not improperly bolster the victim's testimony by presenting the testimonyof the victim's father (see generally People v McDaniel, 81 NY2d 10, 16 [1993]),nor did the prosecutor thereby violate CPL 60.42 (see generally People v Wigfall,253 AD2d 80, 81-83 [1999], lv denied 93 NY2d 981 [1999]). We likewise rejectdefendant's contention that he was denied effective assistance of counsel based ondefense counsel's failure to object to the alleged instances of prosecutorial misconductduring summation. Because the alleged improper remarks did not deny defendant a fairtrial, he was not denied effective assistance of counsel based upon defense counsel'sfailure to object to those remarks (see People v Hendrix, 132 AD3d 1348, 1348 [2015], lvdenied 26 NY3d 1145 [2016]). With respect to the contention that defendant wasdenied effective assistance based on additional alleged failings of defense counsel, weconclude that defendant has failed to establish the absence of any strategic or otherlegitimate explanation for defense counsel's alleged failings (see generally People v Caban,5 NY3d 143, 152 [2005]).
Defendant further contends that the People failed to disclose Brady materialin a timely manner. We agree. We conclude, however, that the Brady violationdoes not require reversal because the information was turned over as Rosariomaterial prior to jury selection, thus affording defendant a "meaningful opportunity" touse the information during cross-examination (People v Middlebrooks, 300AD2d 1142, 1143 [2002], lv denied 99 NY2d 630 [2003]; see People vCortijo, 70 NY2d 868, 870 [1987]; People v Bernard, 115 AD3d 1214, 1215 [2014], lvdenied 23 NY3d 1018 [2014]).
Defendant failed to preserve for our review his contention that the indictment wasrendered duplicitous by the testimony at trial (see People v Allen, 24 NY3d 441, 449-450 [2014]; People v Armstrong, 134AD3d 1401, 1402 [2015], lv denied 27 NY3d 962 [2016]). We decline toexercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Present—Whalen, P.J., Smith, Lindley,NeMoyer and Scudder, JJ.