| People v Morgan |
| 2017 NY Slip Op 02212 [148 AD3d 1590] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Jason B.Morgan, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Linda M. Campbell of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered February 19, 2013. The judgment convicted defendant, upon a jury verdict, of rape inthe first degree and criminal trespass in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of rape in thefirst degree (Penal Law § 130.35 [1]) and criminal trespass in the second degree(§ 140.15 [1]), defendant contends that he was denied his right to present acomplete defense when Supreme Court refused to allow him to present the testimony of a privateinvestigator, who would testify that the investigator was unable to enter the victim's apartmentthrough the window allegedly used by defendant to enter the apartment. We reject thatcontention. While it is true that a defendant's right to present witnesses to establish a defense is a"fundamental element of due process of law" (Washington v Texas, 388 US 14, 19[1967]), "a defendant's right to present evidence is not absolute, but is subject to rules ofevidence and procedure" (People vBrown, 107 AD3d 1145, 1148 [2013], lv denied 22 NY3d 1039 [2013]). Here,the testimony of the private investigator was not relevant to the issues at trial. Whetherdefendant's investigator was able to enter the apartment through the window at issue has no" 'tendency in reason to prove the existence of any material fact' " (People v McCullough, 117 AD3d1415, 1416 [2014], lv denied 23 NY3d 1040 [2014]), and the court thereforeproperly excluded that testimony.
We also reject defendant's contention that the court erred in admitting a recording of atelephone call between defendant and the victim wherein he threatened her three weeks before heraped her. Contrary to defendant's contention, the court applied the proper legal standard indetermining that the People established a proper foundation for the recording's admission (seegenerally People v Ely, 68 NY2d 520, 527 [1986]).
Defendant further contends that he was denied a fair trial by prosecutorial misconduct onsummation. Defendant failed to preserve his contention for our review to the extent that healleges that the prosecutor improperly vouched for the victim's credibility and denigrated thedefense (see People v Simmons, 133AD3d 1227, 1228 [2015]), and we decline to exercise our power to review those allegationsas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). With respect todefendant's contention that the prosecutor engaged in misconduct by mischaracterizing theevidence on summation, we conclude that the prosecutor's statement on summation was isolated,and the court's instructions during the jury charge ameliorated any prejudice to defendant (see generally People v Currier, 83AD3d 1421, 1422-1423 [2011], amended on rearg 85 AD3d 1657 [2011]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see [*2]People v Danielson, 9 NY3d 342, 349 [2007]), we furtherconclude that the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Even assuming that a contrary verdict would not havebeen unreasonable, we conclude that nothing about the victim's testimony rendered it manifestlyunworthy of belief, and "[r]esolution of issues of credibility, as well as the weight to be accordedto the evidence presented, are primarily questions to be determined by the jury" (People v Witherspoon, 66 AD3d1456, 1457 [2009], lv denied 13 NY3d 942 [2010]).
We reject defendant's challenge to the severity of the sentence. We have examineddefendant's remaining contention and conclude that it does not warrant modification or reversalof the judgment. Present—Peradotto, J.P., Carni, Lindley, Curran and Scudder, JJ.