| People v Stone |
| 2020 NY Slip Op 04187 [185 AD3d 967] |
| July 22, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Melvin S. Stone, Appellant. |
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Nicole L. Gallo of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D.Cohen, J.), rendered August 10, 2018, convicting him of course of sexual conduct against a childin the first degree and criminal sexual act in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant was arrested after his stepdaughter accused him of sexual abuse, beginningwhen she was 5 years old and continuing until she was 14 years old. The abuse began when thefamily lived in Brooklyn and continued as the family moved to Queens and then Suffolk County.The defendant was charged with the crimes that occurred in Suffolk County. During the trial, theCounty Court allowed testimony about the earlier uncharged abuse, which had occurred inBrooklyn and Queens, to be admitted into evidence. The jury convicted the defendant of courseof sexual conduct against a child in the first degree and criminal sexual act in the seconddegree.
The defendant's challenge to the legal sufficiency of the evidence supporting his convictionsis unpreserved for appellate review since he failed to move for a trial order of dismissalspecifically directed at the elements he now claims are insufficient (see CPL 470.05 [2];People v Carncross, 14 NY3d319, 324-325 [2010]; People vHawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that it was legally sufficient to establish the defendant's guilt beyond a reasonabledoubt.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The County Court providently exercised its discretion in permitting the People to elicittestimony regarding uncharged crimes, because the evidence was relevant backgroundinformation that placed the charged conduct in context and because the probative value of thatevidence outweighed the risk of prejudice to the defendant (see People v Frumusa, 29 NY3d 364, 369 [2017]; People v Leonard, 29 NY3d 1, 6[2017]; People v Cass, 18 NY3d553, 559 [2012]; People v Molineux, 168 NY 264, 293 [1901]).
Contrary to the defendant's contention, the County Court properly denied the defendant'srequest to call a witness to contradict the complainant's testimony concerning a collateral mattersolely for the purpose of impeaching the complainant's credibility (see People v Pavao,59 NY2d 282, 288-289 [1983]; People vTurner, 145 AD3d 745, 746 [2016]).
The defendant's contention that certain remarks made by the prosecutor during summationdeprived him of a fair trial is unpreserved for appellate review, as defense counsel either did notobject to the challenged remarks or made only general objections (see CPL 470.05 [2];People v Tonge, 93 NY2d 838, 839-840 [1999]; People v Simms, 178 AD3d 963, 964 [2019]). In any event, thecontention is without merit. The prosecutor's remarks, in nearly every instance, were responsiveto defense counsel's summation, constituted fair comment on the evidence, or were within thebroad bounds of rhetorical comment permissible in closing arguments (see People v Thompson, 118 AD3d822 [2014], revd on other grounds 26 NY3d 678 [2016]; People v Jackson, 41 AD3d 498,499 [2007]). To the extent that any remarks were improper, the error was not so egregious as tohave deprived the defendant of a fair trial (see People v Giddens, 161 AD3d 1191, 1193-1194 [2018]).Furthermore, since nearly all of the challenged remarks were not improper, defense counsel'sfailure to object to them did not constitute ineffective assistance of counsel (see People vSimms, 178 AD3d at 963-964).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Chambers, Iannacciand Christopher, JJ., concur.