| People v Elmore |
| 2019 NY Slip Op 06300 [175 AD3d 1003] |
| August 22, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Robbie C. Elmore, Sr., Appellant. |
Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, PLLC, Syracuse(John A. Cirando of counsel), for defendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered July13, 2012. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in thefirst degree (two counts), attempted criminal sexual act in the first degree, criminal sexual act inthe second degree (two counts), criminal sexual act in the third degree (two counts), incest in thethird degree (two counts) and intimidating a victim or witness in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofattempted criminal sexual act in the first degree (Penal Law §§ 110.00, 130.50[1]), intimidating a victim or witness in the third degree (§ 215.15), and two countseach of criminal sexual act in the first degree (§ 130.50 [1]), criminal sexual act inthe second degree (§ 130.45 [1]), criminal sexual act in the third degree(§ 130.40 [3]), and incest in the third degree (§ 255.25).
We reject defendant's contention that County Court abused its discretion in itsMolineux ruling. It is well established that "[e]vidence of a defendant's prior bad actsmay be admissible when it is relevant to a material issue in the case other than defendant'scriminal propensity" (People vDorm, 12 NY3d 16, 19 [2009]). Here, the victim of the charged crimes was defendant'sfamily member, and testimony from the victim upon redirect examination about uncharged actsof defendant's prior abuse of other family members was properly admitted in evidence for thepurposes of completing the narrative and providing relevant background information of thefamily dynamic, and was relevant to the element of forcible compulsion with respect to thecharges of criminal sexual act in the first degree (see People v Washington, 122 AD3d 1406, 1408 [4th Dept 2014],lv denied 25 NY3d 1173 [2015]; People v Ennis, 107 AD3d 1617, 1618 [4th Dept 2013], lvdenied 22 NY3d 1040 [2013], denied reconsideration 23 NY3d 1036 [2014]; People v Higgins, 12 AD3d 775,777-778 [3d Dept 2004], lv denied 4 NY3d 764 [2005]). Contrary to defendant'scontention, the probative value of that evidence was not outweighed by its potential for prejudice(see generally People v Alvino, 71 NY2d 233, 242 [1987]) and, moreover, the court'sprompt limiting instructions ameliorated any prejudice (see People v Larkins, 153 AD3d 1584, 1587 [4th Dept 2017], lvdenied 30 NY3d 1061 [2017]).
Defendant's contention that the evidence is legally insufficient with respect to his convictionof the counts of criminal sexual act in the first degree and attempted criminal sexual act in thefirst degree is preserved for our review because, in his motion for a trial order of dismissal, hespecifically argued that the People did not meet their burden of establishing the element offorcible compulsion. His sufficiency contention with respect to the remaining counts of which hewas convicted, however, is unpreserved because defendant made a general, unspecific motion todismiss those counts, arguing merely that the People failed to meet their prima facie burden(see People v Gray, 86 NY2d 10, 19 [1995]; People v Streeter, 166 AD3d 1509, 1510 [4th Dept 2018], lvdenied 32 NY3d 1210 [2019]).
With respect to the counts of criminal sexual act in the first degree and attempted criminalsexual act in the first degree, viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legallysufficient to support the conviction. There was ample evidence that, during each of the separateinstances at issue, defendant used violence, or threatened to use violence, to get the victim to, orattempt to make her, perform oral sex on him (see Penal Law§§ 130.00 [8]; 130.50 [1]). The victim testified that, during one such incident,based on her prior experience living with defendant she feared that defendant would subject herto physical abuse if she did not comply with his demand for oral sex (see People v Bailey,178 AD2d 846, 847 [3d Dept 1991], lv denied 79 NY2d 943 [1992]). The victim furthertestified that, during another such incident, defendant made an implied threat that he would hurther if she did not comply (see People v O'Donnell, 138 AD2d 896, 897 [3d Dept 1988],lv denied 72 NY2d 864 [1988]).
Furthermore, viewing the evidence in light of the elements of the crimes as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Even assuming,arguendo, that a different verdict would not have been unreasonable, we cannot conclude" 'that the jury failed to give the evidence the weight it should be accorded' " (People v Ray, 159 AD3d 1429,1430 [4th Dept 2018], lv denied 31 NY3d 1086 [2018]; see generally Bleakley,69 NY2d at 495). To the extent that defendant contends that the victim's testimony was notcredible, "the jury was in the best position to assess [her] credibility" (People v Chelley, 121 AD3d 1505,1506 [4th Dept 2014], lv denied 24 NY3d 1218 [2015], denied reconsideration 25NY3d 1070 [2015] [internal quotation marks omitted]), and we perceive no reason to reject thejury's credibility determination. Moreover, we "note that [the victim's] testimony was not soinconsistent or unbelievable as to render it incredible as a matter of law" (People v Edwards, 159 AD3d1425, 1426 [4th Dept 2018], lv denied 31 NY3d 1116 [2018] [internal quotationmarks omitted]).
Although we agree with defendant that certain of the prosecutor's comments during hisopening statement and summation were improper—such as, inter alia, his characterizationof defendant as a "monster"—we nevertheless conclude that, viewing the openingstatement and summation as a whole, those comments "were not so pervasive or egregious as todeprive defendant of a fair trial" (Peoplev Black, 124 AD3d 1365, 1366 [4th Dept 2015], lv denied 26 NY3d 926 [2015][internal quotation marks omitted]; seePeople v Jones, 114 AD3d 1239, 1241 [4th Dept 2014], lv denied 23 NY3d1038 [2014], lv denied 25 NY3d 1166 [2015]). Thus, contrary to defendant's furthercontention, we also conclude that defense counsel's failure to object to all but one of thesecomments did not constitute ineffective assistance of counsel (see Black, 124 AD3d at1366; People v Williams, 98 AD3d1279, 1280 [4th Dept 2012], lv denied 20 NY3d 1066 [2013]).
We further reject defendant's remaining contentions that he was denied effective assistanceof counsel at trial (see generally People v Baldi, 54 NY2d 137, 147 [1981]). To the extenthe contends that defense counsel was ineffective for allegedly not seeking to admit certainevidence about other sexual abuse allegedly suffered by the victim, we conclude that counsel did,in fact, seek to admit that evidence and that the court denied that request.
We also conclude that defense counsel was not ineffective for failing to call an expertwitness at trial. Defendant failed to demonstrate the absence of strategic or other legitimateexplanations for that alleged deficiency (see generally People v Howie, 149 AD3d 1497, 1499-1500 [4thDept 2017], lv denied 29 NY3d 1128 [2017]). The People did not call their own expert totestify at trial, and it is likely that, had defendant sought to introduce expert testimony, it wouldhave opened the door for testimony from the People's expert (see generally People v Rodriguez, 159 AD3d 631, 632 [1st Dept2018], lv denied 31 NY3d 1121 [2018]).
Defendant's contention that the court should have conducted a hearing concerning certainpurported errors in the presentence report is unpreserved because, despite objecting to several ofthese errors at sentencing, defendant never specifically requested a hearing (see Jones,114 AD3d at 1242). In any event, that contention is without merit, inasmuch as defendant clearlyapprised the court of the complained-of errors in the presentence report, and there is noindication in the record that the court relied on any of these alleged errors in imposing sentence(see People v McManus, 150 AD3d762, 764 [2d Dept 2017], lv denied 29 NY3d 1093 [2017]; People v Gibbons, 101 AD3d1615, 1616 [4th Dept 2012]).
Finally, we conclude that the sentence is not unduly harsh or severe. Present—Centra,J.P., Peradotto, DeJoseph, Curran and Winslow, JJ.