| People v Cutting |
| 2017 NY Slip Op 03767 [150 AD3d 873] |
| May 10, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Cyril Cutting, Appellant. |
Lynn W. L. Fahey, New York, NY (Erin R. Tomlinson and Paul Skip Laisure of counsel), forappellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Victor Barallof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered May 6, 2014, convicting him of criminal sexual act in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
After a jury trial, the defendant was convicted of criminal sexual act in the second degree,arising out of acts that occurred on September 23, 2012. On that date, the defendant, who wasthen 28 years old, induced the complainant, who was then 14 years old, to accompany him to amotel room, where he engaged in the proscribed conduct. At trial, the defendant's guilt wasestablished, inter alia, by the complainant's testimony and his statements to police admitting thathe took the complainant to the motel room, and thereafter telephoned her numerous times.
The defendant's challenge to the legal sufficiency of the evidence supporting his conviction isunpreserved for appellate review, since the defendant made only a general motion for a trial orderof dismissal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Katehis, 117 AD3d 1080,1081 [2014]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, the Supreme Court did not err in declining to submitto the jury the offense of sexual misconduct (see Penal Law § 130.20) as alesser included offense of criminal sexual act in the second degree (see Penal Law§ 130.45 [1]). Viewing the evidence in the light most favorable to the defendant, noreasonable view of the evidence would have supported a finding that the defendant committedsexual misconduct but did not commit criminal [*2]sexual act inthe second degree (see CPL 300.50 [1]; People v Rivera, 23 NY3d 112, 120-121 [2014]; People vSaddlemire, 121 AD2d 791, 793 [1986]). The defendant's contention that the court shouldhave submitted to the jury certain misdemeanor counts in the indictment that were concurrentcounts of the counts charging rape in the second degree has been rendered academic, since thejury acquitted the defendant of the rape counts (see People v Franqueira, 143 AD3d 1164, 1169 [2016]; People v Harris, 129 AD3d 990,991 [2015]). The court did not improvidently exercise its discretion in refusing to charge theother misdemeanor counts in the indictment (see People v Leon, 7 NY3d 109, 113-114 [2006]; People v Akomah, 52 AD3d 521,522 [2008]; cf. People v Extale, 18NY3d 690, 695-696 [2012]; Peoplev Urbina, 99 AD3d 821, 822 [2012]).
The defendant's Batson challenge (see Batson v Kentucky, 476 US 79 [1986])to the prosecutor's exercise of peremptory challenges was properly denied, as he failed to makethe requisite prima facie showing of discrimination. "It is incumbent upon a party making aBatson challenge to articulate and develop all of the grounds supporting the claim, bothfactual and legal, during the colloquy in which the objection is raised and discussed" (People v Cuesta, 103 AD3d 913,914 [2013]; see People v Childress, 81 NY2d 263, 268 [1993]). On this record, thedefendant's reliance on the number of peremptory challenges exercised by the People againstprospective male jurors, without more, was insufficient to make a prima facie showing (see People v Hecker, 15 NY3d625, 651-652, 655 [2010]; People v Brown, 97 NY2d 500, 507-508 [2002]; People v Chance, 125 AD3d 993,994 [2015]; People v Sandy, 11AD3d 489, 489 [2004]).
The defendant's specific contentions regarding the Supreme Court's Sandoval ruling(see People v Sandoval, 34 NY2d 371 [1974]) are unpreserved for appellate review(see People v Hawkins, 11 NY3d at 494; People v Jackson, 139 AD3d 875, 877 [2016]). In any event, thecourt's Sandoval ruling was not an improvident exercise of discretion. The court properlybalanced the probative value of the defendant's prior convictions on the issue of the defendant'scredibility against the risk of unfair prejudice to the defendant (see People v Paige, 88 AD3d 912,912 [2011]; People v Celleri, 29AD3d 707, 709 [2006]).
The defendant further contends that he was denied his constitutional rights to present acomplete defense and confront witnesses by the Supreme Court's application of the Rape ShieldLaw (CPL 60.42) to prohibit him from cross-examining the complainant, who was 15 years oldat the time of trial, about an alleged sexual relationship with another man. However, since thedefendant did not assert a constitutional right to introduce the excluded evidence at trial, hisconstitutional claims are unpreserved for appellate review (see People v Lane, 7 NY3d 888, 889 [2006]; People v Simmons, 106 AD3d1115, 1116 [2013]). In any event, under the circumstances, the court's application of theRape Shield Law was a provident exercise of discretion (see People v Weberman, 134 AD3d 862, 863 [2015]; People v Shaw, 126 AD3d 1016,1016 [2015]; People v Simmons, 106 AD3d at 1116; see also People v Tohom, 109 AD3d 253, 274 [2013]).
The defendant's contention that he was denied due process by the People's presentation ofinadmissible and excessive outcry testimony is without merit, since the complainant's outcry wasmade at the first suitable opportunity (see People v McDaniel, 81 NY2d 10, 17 [1993]).Further, the defense elicited some of the challenged testimony on cross-examination to bolsterthe defendant's claim that the complainant in fact had sex with another man (see People v Renaud, 137 AD3d818, 820 [2016]; People vStalter, 77 AD3d 776, 777 [2010]). The defendant's claim that bolstering evidence wasimproperly admitted is unpreserved for appellate review, and in any event without merit (see People v Arroyo, 128 AD3d843, 845 [2015]; People vRagsdale, 68 AD3d 897, 897-898 [2009]; see also People v Smith, 22 NY3d 462, 464 [2013]). Thedefendant's ineffective assistance of counsel claim, based solely on his attorney's failure to objectto the purportedly bolstering testimony, is without merit (see People v Smith, 135 AD3d 970, 971 [2016]; People v Watson, 121 AD3d 921,922 [2014]).
Contrary to the People's contention, the defendant preserved for appellate review hiscontention that the jury charge failed to adequately instruct the jury as to the burden of proof,including reasonable doubt (see CPL 470.05 [2]; People v Maddox, 92 AD3d 696, 697 [2012]; cf. People vRobinson, 88 NY2d 1001, 1001-1002 [1996]). The defendant's contention is without meritbecause the jury instructions, taken as a whole, conveyed the correct standard to be employedwith respect to the [*3]burden of proof, including reasonabledoubt (see People v Fields, 87 NY2d 821, 823 [1995]; People v Page, 137 AD3d 817, 817[2016]; People v Romero, 123AD3d 1147, 1148 [2014]; People vSeaton, 45 AD3d 875, 875 [2007]).
The defendant's contention that the Supreme Court failed to meaningfully respond to a jurynote requesting clarification is unpreserved for appellate review (see People v Clark, 28 NY3d 556[2016]) and, in any event, without merit (see People v Malloy, 55 NY2d 296, 301-303[1982]; People v Ariza, 77 AD3d844, 845 [2010]).
The defendant's remaining contentions are without merit. Dillon, J.P., Austin, Hinds-Radixand Maltese, JJ., concur.