| People v Brown |
| 2016 NY Slip Op 04828 [140 AD3d 1740] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCurtis Brown, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered April 14, 2014. The judgment convicted defendant, upon a jury verdict, ofcriminal sexual act in the second degree (three counts), sexual abuse in the second degree(three counts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trialof, inter alia, three counts of criminal sexual act in the second degree (Penal Law§ 130.45 [1]). The charges stemmed from defendant's sexual abuse of hisdaughter. Viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). It is well settled that "[r]esolution of issues of credibility, aswell as the weight to be accorded to the evidence presented, are primarily questions to bedetermined by the jury" (Peoplev Witherspoon, 66 AD3d 1456, 1457 [2009], lv denied 13 NY3d 942[2010] [internal quotation marks omitted]). Contrary to defendant's contention, the trialtestimony of the victim "was not so inconsistent or unbelievable as to render it incredibleas a matter of law" (People vBlack, 38 AD3d 1283, 1285 [2007], lv denied 8 NY3d 982 [2007]), andwe see no basis for disturbing the jury's credibility determinations in this case.
Defendant further contends that testimony on the People's direct case regardingcertain answers he provided during a police interview constituted improper evidence ofselective silence. We reject that contention inasmuch as the testimony established thatdefendant did not remain silent in response to police questioning (cf. People v Williams, 25NY3d 185, 193 [2015]; People v Capers, 94 AD3d 1475, 1476 [2012], lvdenied 19 NY3d 971 [2012]). Defendant's contention that the People improperlybolstered the victim's testimony by introducing evidence of her delayed disclosures ofdefendant's actions is not preserved for our review inasmuch as defendant did not objectto that evidence at trial (see CPL 470.05 [2]; People v Comerford, 70 AD3d 1305, 1306 [2010]), and wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
We reject defendant's further contention that he was denied effective assistance ofcounsel. Viewing the evidence, the law, and the circumstances of this case, in totality andas of the time of the representation, we conclude that defendant's attorney providedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147[1981]).
Finally, defendant contends that the People failed to comply with the requirements ofCPL 400.15 in sentencing him as a second violent felony offender and thus, that thesentence is illegal. We conclude that defendant's contention, which is actually a challengeto the adequacy of the procedures that County Court used in sentencing him rather thanto the legality of the sentence, is not preserved for our review (see People v Butler, 96 AD3d1367, 1368 [2012], lv denied 20 [*2]NY3d931 [2012]; cf. People v Samms, 95 NY2d 52, 58 [2000]). In any event, therecord establishes that, prior to sentencing, both defendant and defense counsel receivedand signed a copy of the second felony offender statement and, at sentencing, the courtasked defendant whether there was "[a]nything . . . you want to say before Ipronounce sentence." We therefore conclude that "there was substantial compliance withCPL 400.15 in this case . . . inasmuch as both defendant and defensecounsel 'received adequate notice and an opportunity to be heard with respect to the priorconviction' " (People vMyers, 52 AD3d 1229, 1230 [2008]; see People v Hall, 82 AD3d 1619, 1620 [2011], lvdenied 16 NY3d 895 [2011]). Present—Peradotto, J.P., Carni, Lindley, Curranand Troutman, JJ.