| People v Armendariz |
| 2017 NY Slip Op 08976 [156 AD3d 1383] |
| December 22, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v RamiroArmendariz, Appellant. |
Joshua P. Bannister, Herkimer, for defendant-appellant.
Christopher Bokelman, Acting District Attorney, Lyons (Jacqueline McCormick of counsel),for respondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), renderedJanuary 26, 2016. The judgment convicted defendant, upon a jury verdict, of rape in the thirddegree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofrape in the third degree (Penal Law § 130.25 [2]) and endangering the welfare of achild (§ 260.10 [1]). The conviction is supported by legally sufficient evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]) and, when the evidence isviewed in light of the elements of the crimes as charged to the jury, the verdict is not against theweight of the evidence (see generallyPeople v Danielson, 9 NY3d 342, 349 [2007]). Contrary to defendant's contention, his"statement of his [date of birth] given to a police officer who elicited pedigree information"constitutes legally sufficient evidence that defendant was over 21 years old when he engaged insexual intercourse with the 16-year-old victim (People v White, 149 AD2d 939, 939 [4thDept 1989], lv denied 74 NY2d 821 [1989]; see generally People v Perryman,178 AD2d 916, 917 [4th Dept 1991], lv denied 79 NY2d 1005 [1992]). Contrary todefendant's further contention, the victim's functionally interchangeable descriptions of the lengthof her sexual encounter with defendant are not internally inconsistent, and they do not persuadeus that the verdict is against the weight of the evidence.
Defendant received effective assistance of counsel (see generally People v Clark, 28 NY3d 556, 562-563 [2016]). Thealleged improprieties in the prosecutor's summation were not so egregious that counsel wasineffective by failing to object (seePeople v Koonce, 111 AD3d 1277, 1278-1279 [4th Dept 2013]). Moreover, "although itwas improper for the prosecutor to question prospective jurors about their attitudes towards thelaws of New York pertaining to [statutory rape], defendant has failed to show the absence of astrategic reason for counsel's failure to object [so] . . . as to support a finding ofineffective assistance of counsel" (People v LaDuke, 140 AD3d 1467, 1470 [3d Dept 2016] [citationsomitted]).
Defendant's remaining contentions are unpreserved for our review (see CPL 470.05[2]), and we decline to exercise our power to review them as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). Finally, we note that the certificate of convictioncontains several errors regarding the sentences imposed, and it must be amended to reflect thecorrect sentences of 120 days of incarceration and 10 years of probation on count one, and threeyears of probation on count two (seegenerally People v Kemp, 112 AD3d 1376, 1377 [4th Dept 2013]).Present—Whalen, P.J., Smith, Lindley, NeMoyer and Curran, JJ.