Opinion
933 KA 15–01965
09-27-2019
The PEOPLE of the State of New York, Respondent, v. Devonte E. BURTON, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (A. VINCENT BUZARD OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (A. VINCENT BUZARD OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of sexual abuse in the first degree ( Penal Law § 130.65[1] ), defendant contends that he was denied a fair trial by prosecutorial misconduct during jury selection and summation. Assuming, arguendo, that defendant's contention is preserved for our review (see CPL 470.05[2] ), we reject it. The prosecutor's questions during jury selection concerning the likelihood that a victim of child sexual abuse knows the offender were "relevant and material to the inquiry at hand" ( People v. Sweney , 55 A.D.3d 1350, 1351, 864 N.Y.S.2d 634 [4th Dept. 2008], lv denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 [2008] [internal quotation marks omitted]; see generally CPL 270.15[1][c] ). To the extent that the prosecutor mischaracterized the testimony of a witness during summation, we conclude that the prosecutor's comments were not so egregious as to deprive defendant of a fair trial (see People v. Fick , 167 A.D.3d 1484, 1485–1486, 90 N.Y.S.3d 421 [4th Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019] ; People v. Flowers , 166 A.D.3d 1492, 1495, 87 N.Y.S.3d 425 [4th Dept. 2018], lv denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ).
Mark W. Bennett
Clerk of the Court