| People v Chirse |
| 2017 NY Slip Op 00049 [146 AD3d 1031] |
| January 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDevante Chirse, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered April 24, 2015, upon a verdict convicting defendant of the crimes ofcriminal sexual act in the first degree (three counts) and criminal sexual act in the seconddegree (three counts).
Defendant, then 21 years of age, allegedly forced the victim, then 13 years of age, tofellate him on three occasions in February 2014. The victim disclosed the abuse to hermother shortly after the third incident, at which point the authorities were summoned.The ensuing investigation ended in defendant being indicted on three counts of criminalsexual act in the first degree and three counts of criminal sexual act in the second degree.A jury found him guilty as charged. County Court imposed concurrent sentences on eachcount that resulted in an aggregate prison sentence of 10 years to be followed bypostrelease supervision of 20 years. Defendant now appeals.
Defendant's initial contention that the verdict was not based upon legally sufficient"evidence is unpreserved for our review inasmuch as he presented evidence after hisunsuccessful motion to dismiss and failed to renew that motion at the close of all proof"(People v Peterkin, 135AD3d 1192, 1192 [2016]; see People v Lane, 7 NY3d 888, 889 [2006]). Nevertheless,"since defendant also argues that the verdict was against the weight of the evidence,which does not require preservation, we will consider the evidence adduced as to each ofthe elements of the challenged crimes in the context of that review" (People v Race, 78 AD3d1217, 1219 [2010] [internal quotation marks and citation omitted], lv denied16 NY3d 835 [2011]; seePeople v [*2]Simmons, 135 AD3d 1193, 1195[2016], lv denied 27 NY3d 1006 [2016]). Turning to that analysis, acquittal wasa reasonable possibility due to the conflicting accounts provided by defendant and thevictim and the lack of physical evidence to corroborate the victim's claims, and we aretherefore obliged to "weigh conflicting testimony, review any rational inferences thatmay be drawn from the evidence and evaluate the strength of such conclusions[,]. . . [deciding] whether the jury was justified in finding . . .defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007]; see People v Kancharla, 23NY3d 294, 303 [2014]; People v Simmons, 135 AD3d at 1195).
The victim testified in detail as to three incidents in February 2014 whereindefendant came into her bedroom and forced her to perform oral sex on him. She told heryounger sister about the first incident soon after it occurred but ordered her sister not totell their mother, a point corroborated by the sister. The victim further testified that shedrafted a letter to her mother disclosing the abuse that she placed in her jewelry box andthat, the day after the third incident, she text messaged her mother with instructions toread the letter. The victim's mother testified to contacting the police upon reading theletter. No physical evidence existed to support the victim's claims, but the Peoplesubmitted proof that this was to be expected due to a variety of factors, including thedelay in disclosing the abuse. County Court also appropriately allowed the jury to heartestimony from a physician who related statements made by the victim that furthered hisperformance of a sexual abuse examination (see People v Spicola, 16 NY3d 441, 451 [2011], certdenied 565 US 942 [2011]), as well as that of a psychologist who explained in general why a child mightfail to promptly disclose sexual abuse (see People v Nicholson, 26 NY3d 813, 828 [2016]; seealso People v Duchowney, 166 AD2d 769, 771 [1990]). Defendant endeavored tocall the victim's account into question, denied that he had abused her and offeredfar-from-conclusive proof that he was elsewhere when some of the incidents allegedlyoccurred. The jury, however, credited the account given by the victim. Deference is owedto that credibility determination and, after weighing the conflicting proof ourselves, wecannot say that the verdict was against the weight of the evidence (see People v Knapp, 138 AD3d1157, 1158 [2016]; Peoplev Adams, 135 AD3d 1154, 1156 [2016], lv denied 27 NY3d 990[2016]).
Defendant's remaining claims may be briefly disposed of. He argues that he wasimproperly excluded from a conference to formulate the charge to the jury. Even if hehad not waived his right to attend all sidebar conferences, his presence would still havebeen superfluous at that conference, which "involved only questions of law orprocedure" (People v Velasco, 77 NY2d 469, 472 [1991]; see People vHoran, 290 AD2d 880, 884 [2002], lv denied 98 NY2d 638 [2002]).Defendant was sentenced to serve several terms of postrelease supervision that merged asa matter of law and, contrary to his contention, no confusion upon that point exists in therecord (see Penal Law § 70.45 [5] [c]). Remittal is not required tocorrect an error on the uniform sentence and commitment form regarding a shorter termof postrelease supervision that was subsumed by a longer one (see People v Dukes, 14 AD3d732, 733 [2005], lv denied 4 NY3d 885 [2005]).
Garry, J.P., Egan Jr., Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.