| People v Edwards |
| 2018 NY Slip Op 01789 [159 AD3d 1425] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v MatthewM. Edwards, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine K. Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedFebruary 29, 2016. The judgment convicted defendant, upon a jury verdict, of rape in the seconddegree (13 counts), criminal sexual act in the second degree (13 counts) and endangering thewelfare 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 of,inter alia, 13 counts each of rape in the second degree (Penal Law § 130.30 [1]) andcriminal sexual act in the second degree (§ 130.45 [1]). Defendant failed to preservefor our review his contention that the indictment was multiplicitous (see People v Quinn, 103 AD3d1258, 1258 [4th Dept 2013], lv denied 21 NY3d 946 [2013]), and duplicitous (see People v Becoats, 17 NY3d643, 650-651 [2011], cert denied 566 US 964 [2012]). We decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
Defendant also failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence inasmuch as his motion for a trial order of dismissal wasnot specifically directed at the grounds advanced on appeal, and we also note in any event that hefailed to renew his motion after presenting evidence (see People v Roman, 85 AD3d 1630, 1630 [4th Dept 2011], lvdenied 17 NY3d 821 [2011]). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). With respect to the credibility of the victim, we note that her testimony "wasnot so inconsistent or unbelievable as to render it incredible as a matter of law" (People v Black, 38 AD3d 1283,1285 [4th Dept 2007], lv denied 8 NY3d 982 [2007]). Issues of credibility are primarilyfor the jury's determination (see Peoplev Witherspoon, 66 AD3d 1456, 1457 [4th Dept 2009], lv denied 13 NY3d 942[2010]), and we see no basis for disturbing the jury's credibility determinations in this case.
Defendant contends that he was denied effective assistance of counsel based on counsel'sfailure to object to alleged prosecutorial misconduct on summation. We reject that contention.Most of the alleged instances of misconduct were fair comment on the evidence and fair responseto defense counsel's summation (seePeople v Redfield, 144 AD3d 1548, 1550 [4th Dept 2016], lv denied 28 NY3d1187 [2017]) and, to the extent that the prosecutor made inappropriate remarks, we conclude thatthey were "not so pervasive or egregious as to deny defendant a fair trial" (People v Young, 153 AD3d 1618,1620 [4th Dept 2017], lv denied 30 NY3d 1065 [2017]). We therefore conclude thatdefense counsel's failure to object to the alleged instances of prosecutorial misconduct did notconstitute ineffective assistance of counsel (see People v Blair, 121 AD3d 1570, 1571 [4th Dept 2014]).Finally, the sentence is not unduly harsh or [*2]severe.Present—Centra, J.P., Carni, NeMoyer, Curran and Winslow, JJ.