| People v Hunt |
| 2019 NY Slip Op 03481 [172 AD3d 1888] |
| May 3, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Clifton Hunt, Also Known as Peter Hunt,Appellant. |
Andrew D. Correia, Public Defender, Lyons (Kimberly J. Czapranski of counsel), fordefendant-appellant.
Michael D. Calarco, District Attorney, Lyons (Bruce A. Rosekrans of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), renderedDecember 20, 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 arises from defendant engaging in sexualintercourse with a 15-year-old victim. Preliminarily, defendant's challenge to the legal sufficiencyof the evidence is unpreserved for our review because his general motion for a trial order ofdismissal was not " 'specifically directed' at" any alleged shortcoming in the evidencenow raised on appeal (People vFord, 148 AD3d 1656, 1657 [4th Dept 2017], lv denied 29 NY3d 1079 [2017],quoting People v Gray, 86 NY2d 10, 19 [1995]; see People v Simmons, 133 AD3d 1227, 1227 [4th Dept2015]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The resolution of issues ofcredibility and the weight to be accorded to the evidence are primarily questions to be determinedby the jury (see People v Abon, 132AD3d 1235, 1236 [4th Dept 2015], lv denied 27 NY3d 1127 [2016]) and, here, thejury had the opportunity to see and hear the victim's testimony about the sexual encounter withdefendant, which was detailed, coherent and internally consistent. "Great deference is accordedto the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor"(Bleakley, 69 NY2d at 495; see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People vGay, 105 AD3d 1427, 1428 [4th Dept 2013]), and we perceive no basis for disturbingthe jury's determination in this case.
We reject defendant's contention that he was deprived of a fair trial by misconduct on thepart of the prosecutor during summation. The comments by the prosecutor were not so egregiousas to deny defendant a fair trial (seePeople v Ielfield, 132 AD3d 1298, 1299 [4th Dept 2015], lv denied 27 NY3d1152 [2016]; People v Hunter, 115AD3d 1330, 1331 [4th Dept 2014], lv denied 23 NY3d 1038 [2014]), and anypotential prejudice was alleviated by County Court's rulings and instructions to the jury (see People v Flowers, 151 AD3d1843, 1844 [4th Dept 2017], lv denied 30 NY3d 1104 [2018]), which the jury ispresumed to have followed (see Peoplev Allen, 78 AD3d 1521, 1521 [4th Dept 2010], lv denied 16 NY3d 827[2011]).
Defendant further contends that he was denied effective assistance of counsel. We reject thatcontention. Defendant failed to meet his burden of demonstrating "the absence of strategic orother legitimate explanations" for defense counsel's allegedly deficient conduct (People vRivera, 71 NY2d 705, 709 [1988]; see People v Carver, 27 NY3d 418, 421 [2016]). Viewing theevidence, the law, and the circumstances of this case in totality and as of the time of therepresentation, we conclude that defendant received meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]).
Inasmuch as defendant failed to raise in the trial court his contention that he was denied theright to confront witnesses, that contention is not preserved for our review (see People v Liner, 9 NY3d 856,856-857 [2007], rearg denied 9 NY3d 941 [2007]). We decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto,DeJoseph, Troutman and Winslow, JJ.