| People v Alexander |
| 2018 NY Slip Op 02504 [160 AD3d 1121] |
| April 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Edward A. Alexander, Appellant. |
Thomas H. Kheel, Ithaca, for appellant.
Matthew VanHouten, District Attorney, Ithaca (Alyxandra Stanczak of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Tompkins County (Cassidy,J.), rendered July 13, 2015, upon a verdict convicting defendant of the crimes of sexual abuse inthe first degree (two counts) and endangering the welfare of a child.
In the early morning hours of January 1, 2014, after hosting a small gathering of family for aNew Year's Eve party, defendant, an adult male, proceeded to engage in sexual conduct with the12-year-old victim while she was sleeping. The victim reported the incident to her father andstepmother the following morning and a police report was filed later that same day. Defendantwas thereafter charged with two counts of sexual abuse in the first degree and one count ofendangering the welfare of child. Following a jury trial, defendant was convicted as charged.County Court thereafter sentenced him to two years in prison followed by three years ofpostrelease supervision for each count of sexual abuse in the first degree and one year in jail forendangering the welfare of a child, with the sentences to run concurrently. Defendant nowappeals.
Defendant initially argues that the verdict was against the weight of the evidence. Where, ashere, a different verdict would not have been unreasonable given that the testimony of the victimand defendant presented a "classic he-said she-said credibility determination for the jury toresolve" (People v Kiah, 156 AD3d1054, 1056 [2017] [internal quotation marks and citation omitted]; see People v McCray, 102 AD3d1000, 1003-1004 [2013], affd 23 NY3d 193 [2014]), this Court "must, like the trierof fact below, weigh the relative probative force of conflicting testimony and the relative strengthof conflicting inferences that may be drawn from [*2]thetestimony" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks andcitation omitted]; see People vDanielson, 9 NY3d 342, 348 [2007]). Here, the 12-year-old victim testified that, on theevening in question, she had accompanied her father and stepmother to the home of defendantand his family for a New Year's Eve party. She testified that, sometime after midnight, she fellasleep on the couch in the living room and awoke around 2:30 a.m. to defendant rubbing andsqueezing her buttocks through her clothes and a blanket. As defendant began to move his handfrom her buttocks toward her vaginal area, she "popped up" and confronted defendant, whom shetestified responded, "don't tell your dad, don't tell your dad." The victim testified that she thenleft the living room to go sleep next to her father and stepmother—who were asleep in anadjacent room—and told them what had occurred later that same morning. The victimtestified that, when confronted with the allegations that morning, defendant became visibly upsetand apologized to her.
Defendant contends that the People failed to conclusively prove that the sexual abuseactually occurred and points to, among other things, certain inconsistencies in the victim'stestimony, the fact there were no corroborating witnesses or physical evidence and the victim'sdelay in reporting the incident. The victim, however, was thoroughly cross-examined regardingthe inconsistencies in her testimony, and there is nothing in the record before us that rendered hertestimony inherently unbelievable or incredible as a matter of law (see People v Bautista, 147 AD3d1214, 1216 [2017]; People v McCray, 102 AD3d at 1003-1004). Moreover, thevictim was competent to testify under oath without corroboration (see People v Izzo, 104 AD3d 964,966 [2013], lv denied 21 NY3d 1005 [2013]), and the jury was free to consider the lackof physical proof of sexual contact as one of the factors in reaching its verdict (see People v Colvin, 37 AD3d856, 857 [2007], lv denied 8 NY3d 944 [2007]). Further, the victim's delay inreporting the incident was not protracted and, although defendant testified at trial and deniedinappropriately touching the victim, the jury was entitled to credit the testimony of the victimover that of defendant (see People vPlanty, 155 AD3d 1130, 1132 [2017], lv denied 30 NY3d 1118 [2018]; People v Thiel, 134 AD3d 1237,1239 [2015], lv denied 27 NY3d 1156 [2016]). Accordingly, viewing the evidence in aneutral light and giving appropriate deference to the factfinder's credibility assessments, we areunpersuaded that the jury's verdict was against the weight of the evidence (see People vBautista, 147 AD3d at 1216-1217; People v Garcia, 141 AD3d 861, 863 [2016], lv denied 28NY3d 929 [2016]; People vFernandez, 106 AD3d 1281, 1281-1286 [2013]).
Next, we find unavailing defendant's contention that he was denied a fair trial due to thePeople's violation of County Court's Sandoval ruling. Defendant correctlyasserts—and the People acknowledge—that the People's question with respect towhether defendant spent 30 days in jail for violating an order of protection contravened CountyCourt's Sandoval compromise. Although defendant timely objected to People's inquirysuch that no response was provided thereto, defendant did not request nor did County Court suasponte provide a curative instruction to the jury with regard to the improper question (compare People v Peterson, 118 AD3d1151, 1155 [2014], lv denied 24 NY3d 1087 [2014]). Notwithstanding, the People'sSandoval violation was not so egregious or unduly prejudicial as to create a significantprobability that defendant would have been acquitted but for such an error (see People v Sparks, 29 NY3d932, 935 [2017]; People vWilliams, 156 AD3d 1224, 1230 [2017]) and, given the strong evidence of defendant'sguilt, we find that, under the circumstances, said error was harmless and did not serve to deprivedefendant of a fair trial (see People v Coager, 266 AD2d 645, 646-647 [1999], lvdenied 94 NY2d 917 [2000]).
Next, defendant failed to preserve for our review his claim of prosecutorial misconduct withrespect to certain allegedly improper comments or remarks made by the prosecutor during [*3]summation (see CPL 470.05 [2]; People v Scippio, 144 AD3d 1184,1187-1188 [2016], lv denied 28 NY3d 1150 [2017]). Defendant's arguments with regardto certain allegedly improper objections rendered by the People during defendant'scross-examination of the victim's stepmother and father have been considered, but we find thatsuch questioning was not unduly prejudicial, and County Court instructed the jury that the Peoplewere permitted to meet with witnesses in preparation of trial (see People v Milford, 118 AD3d 1166, 1171 [2014], lvdenied 23 NY3d 1065 [2014]).
Lastly, we find defendant's contention that his sentence was harsh and excessive to bewithout merit. While the sentence imposed was greater than that offered to defendant during pleanegotiations, there is nothing in the record establishing that he was punished for asserting hisright to trial or that the lengthier sentence ultimately imposed was the result of vindictiveness orretaliation (see People v Olson, 110AD3d 1373, 1377-1378 [2013], lv denied 23 NY3d 1023 [2014]). Moreover, giventhe victim's age, defendant's exploitation of her trust, the seriousness of the offense, his criminalhistory and lack of remorse for his conduct, we find no extraordinary circumstances nor anyabuse of discretion that would warrant modifying the sentence imposed (see People v Gooley, 156 AD3d1231, 1234 [2017]; People v Agan, 301 AD2d 968, 968 [2003]).
Clark, Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.