| People v Peart |
| 2016 NY Slip Op 05588 [141 AD3d 939] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vViverth Peart, Appellant. |
James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedNovember 1, 2012 in Albany County, upon a verdict convicting defendant of the crimesof rape in the first degree (two counts), rape in the third degree (two counts), attemptedcriminal sexual act in the first degree, attempted criminal sexual act in the third degreeand endangering the welfare of a child.
Defendant allegedly subjected the victim, his stepdaughter, to sexual touching forseveral years and forced her to engage in sexual intercourse with him in September 2011and November 2011 when she was 16 years old and he was 55 years old. About a weekafter the November 2011 incident, she reported what had occurred to a family memberwho contacted police. An investigation ensued and defendant was eventually indicted ontwo counts of rape in the first degree, two counts of rape in the third degree, attemptedcriminal sexual act in the first degree, attempted criminal sexual act in the third degreeand endangering the welfare of a child. A jury found him guilty of all counts. He wassentenced to consecutive prison terms of 20 years on the two first-degree rapeconvictions together with various concurrent sentences on the other convictions, as wellas postrelease supervision. Defendant appeals.
Initially, defendant contends that his conviction was against the weight of theevidence, pointing to a lack of corroborating physical evidence or other proof supportingthe victim's version of events. Since a different verdict would not have beenunreasonable, we "must, like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Romero, 7 [*2]NY3d 633, 643 [2006] [internal quotation marks andcitations omitted]; see People vShofkom, 63 AD3d 1286, 1287 [2009], lv denied 13 NY3d 799 [2009],appeal dismissed 13 NY3d 933 [2010]). In conducting this review, "[g]reatdeference is accorded to the fact-finder's opportunity to view the witnesses, hear thetestimony and observe demeanor" (People v Bleakley, 69 NY2d 490, 495 [1987];see People v Scott, 47AD3d 1016, 1017 [2008], lv denied 10 NY3d 870 [2008]).
The victim testified at length regarding defendant's conduct. She recalled that, whenshe was in sixth grade, he started touching her thighs, breasts and vagina at various timesand places when alone with her. She had a poor relationship with her mother, and hereffort to talk to her mother about defendant's conduct was unsuccessful. He encouragedher to have sex before she got much older. In September 2011, she returned home aftersmoking marihuana with her stepbrother, took a shower and, as she exited the bathroomclothed only in a towel, defendant led her by the wrist to a bedroom. He placed her on abed and she then felt his penis push against her vagina. This caused her to jump back andshe left the room. She testified that, in November 2011, she had sex with her boyfriendfor the first time and he then left at about 10:00 p.m. Approximately an hour later,defendant came into her room, began performing oral sex upon her and then inserted hispenis into her vagina.
Videos of police interviews with defendant were shown to the jury. He deniedengaging in sexual intercourse with the victim. He claimed that she offered him sex if hebought her a new cell phone and that, after he purchased her a phone, she came into hisbedroom wearing only a towel and lied down on his bed. Although he acknowledgedpicking up her legs and looking at her, he claimed that he then walked away. Beddingfrom the victim's room obtained via a search warrant revealed blood stains but noseminal fluid. A forensic scientist testified that the samples matched the victim andrevealed at least two male donors, but the samples were not sufficient for comparison to aspecific male. The veracity of the victim's testimony was a key issue at trial anddefendant urged the jury to consider the victim's inconsistencies, her possible motives tolie and the lack of corroborating proof. According due deference to the credibilitydeterminations made by the jury and viewing the evidence in a neutral light, the jury'sverdict is supported by the weight of the credible evidence (see People v Fernandez, 106AD3d 1281, 1285-1286 [2013]; People v Wyre, 97 AD3d 976, 978 [2012], lvdenied 19 NY3d 1030 [2012]; People v Stearns, 72 AD3d 1214, 1216 [2010], lvdenied 15 NY3d 778 [2010]).
Defendant asserts a violation of Molineux in that the victim was permitted totestify on re-direct that defendant had previously given her marihuana. Duringcross-examination of the victim, defendant asked her a series of questions attempting toestablish a motive for her to lie about defendant, including whether he had disapprovedand confronted her about using marihuana. The victim's brief testimony on re-direct thatdefendant had provided her with marihuana clarified the misleading perception createdby defendant's cross-examination (see People v Rojas, 97 NY2d 32, 37-38[2001]; People v DeCarr,130 AD3d 1365, 1366-1367 [2015], lv denied 26 NY3d 1008 [2015]), andSupreme Court interjected an appropriate limiting instruction (see People v Small, 12 NY3d732, 733 [2009]). Under such circumstances, we are unpersuaded that reversibleerror resulted from this testimony.
Review of the record reveals that defendant received meaningful representation (see People v Caban, 5 NY3d143, 152 [2005]) and, thus, his contention in his pro se supplemental brief that hewas deprived of the effective assistance of counsel is unavailing. "The failings to whichdefendant points as suggestive of ineffectiveness have either no merit, were trial tacticswhich have a legitimate explanation or deal with matters outside the record, whichshould be pursued in a postverdict motion pursuant to CPL article 440" (People vBrennan, 290 AD2d 574, [*3]576 [2002] [internalcitations omitted], lv denied 97 NY2d 751 [2002]; see People v Cruz, 53 AD3d986, 986 [2008]).
The sentence is not harsh or excessive. "Where, as here, the sentence falls within thepermissible statutory range, 'we will not disturb it unless we find that the sentencingcourt abused its discretion or extraordinary circumstances exist warranting amodification' " (Peoplev Lancaster, 121 AD3d 1301, 1304 [2014], lv denied 24 NY3d 1121[2015], quoting People v Cruz, 53 AD3d at 986). "The mere fact that a sentenceimposed after trial is greater than that offered in connection with plea negotiations is notproof positive that defendant was punished for asserting his right to trial" (People v Beauharnois, 64AD3d 996, 1001 [2009] [internal quotation marks, brackets and citations omitted],lv denied 13 NY3d 834 [2009]). Supreme Court gave less than the maximumallowable sentence and, although defendant did not have a criminal record, given thenature of the crimes committed against a young person in his trust and care, we find noabuse of discretion or extraordinary circumstances warranting a reduction in the interestof justice (see People vHughes, 114 AD3d 1021, 1025 [2014], lv denied 23 NY3d 1038 [2014];People v Warner, 110AD3d 1339, 1340-1341 [2013], lv denied 22 NY3d 1091 [2014]). Theremaining arguments lack merit.
McCarthy, Garry and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.