Opinion
2014-05-8
The PEOPLE of the State of New York, Respondent, v. Kenneth A. FOULKES, Appellant.
Justin C. Brusgul, Voorheesville, for appellant. James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.
Justin C. Brusgul, Voorheesville, for appellant. James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, GARRY and ROSE, JJ.
GARRY, J.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 9, 2011, upon a verdict convicting defendant of the crimes of criminal sexual act in the second degree, forcible touching and endangering the welfare of a child.
In June 2010, defendant, then age 31, picked up the victim (born in 1995) from her house and drove her to the apartment where he lived with his fiancée, who is the victim's older sister, and their infant daughter. The victim babysat the infant that evening while defendant attended a meeting, and he later drove her home. The following evening, the victim communicated to her older brother that, when defendant returned from his meeting the night before, he lay down on the bed next to her and engaged her in various sexual acts; he kissed her, then removed articles of her clothing, sucked on her breasts, put her hand over his erect penis through his pants, and began to perform oral sex on her, stopping when she pushed his head away. Upon hearing this, and with the victim's consent, her brother contacted their father and the police. Defendant was thereafter charged by indictment with criminal sexual act in the second degree, forcible touching and endangering the welfare of a child. Following a jury trial, defendant was convicted as charged. He was later sentenced to a prison term of seven years, followed by 10 years of postrelease supervision, for the conviction of criminal sexual act in the second degree, and concurrent terms of one year for each of the other offenses. Defendant appeals.
Defendant contends that the convictions are against the weight of the evidence because the victim's uncorroborated testimony was unworthy of belief and there was a lack of DNA evidence. As a different verdict would not have been unreasonable, viewing the evidence in a neutral light, we “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted]; accord People v. Patterelli, 68 A.D.3d 1151, 1152–1153, 889 N.Y.S.2d 748 [2009] ). Given the lack of physical evidence or witnesses, factors that are not uncommon in sexual assaults, the victim's testimony and credibility was a central issue for the jury-and after hearing defendant's contradictory testimony, the jury found her credible ( see People v. Fernandez, 106 A.D.3d 1281, 1282–1283, 1285, 968 N.Y.S.2d 603 [2013];see also People v. Russell, 116 A.D.3d 1090, ––––, 983 N.Y.S.2d 105, 108 [2014] ). According great deference to the jury's opportunity to view the victim's testimony and assess her credibility, we do not find that defendant's conviction was against the weight of the evidence ( see People v. Jabaut, 111 A.D.3d 1140, 1144, 976 N.Y.S.2d 262 [2013],lv. denied22 N.Y.3d 1139, 983 N.Y.S.2d 498, 6 N.E.3d 617 [2014];People v. Clairmont, 75 A.D.3d 920, 923, 906 N.Y.S.2d 369 [2010],lv. denied15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812 [2010];People v. Caba, 66 A.D.3d 1121, 1122–1123, 887 N.Y.S.2d 709 [2009] ).
We are not persuaded by defendant's further contention that trial counsel provided ineffective assistance by failing to adequately cross-examine the victim, and thus undermine her credibility. Considering the difficulties posed in cross-examining this young victim and the potential for alienating the jury, defendant has failed to show “an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct” ( People v. Lapi, 105 A.D.3d 1084, 1086, 962 N.Y.S.2d 768 [2013],lv. denied21 N.Y.3d 1043, 972 N.Y.S.2d 541, 995 N.E.2d 857 [2013] [internal quotation marks and citations omitted]; see People v. Izzo, 104 A.D.3d 964, 967, 961 N.Y.S.2d 333 [2013],lv. denied21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 [2013];People v. Hemingway, 85 A.D.3d 1299, 1302–1303, 925 N.Y.S.2d 677 [2011] ). Nor do we find that counsel's failure to object to the People's summation constituted ineffective assistance. The challenged remarks, made in response to defense counsel's summation, did not exceed the limits of fair comment on the evidence and were not so flagrant or pervasive as to deprive defendant of a fair trial ( see People v. Jabaut, 111 A.D.3d at 1146–1147, 976 N.Y.S.2d 262;People v. Lamont, 21 A.D.3d 1129, 1131–1132, 800 N.Y.S.2d 480 [2005],lv. denied6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380 [2006];People v. Graham, 161 A.D.2d 836, 838, 555 N.Y.S.2d 885 [1990],lv. denied 76 N.Y.2d 788, 559 N.Y.S.2d 994, 559 N.E.2d 688 [1990] ).
Defendant's sentence is not harsh or excessive. The fact that the sentence imposed is longer than one rejected during plea negotiations does not establish that defendant was punished for exercising his constitutional right to trial ( see People v. Izzo, 104 A.D.3d at 968, 961 N.Y.S.2d 333;People v. Sapienza, 91 A.D.3d 988, 989, 935 N.Y.S.2d 738 [2012] ). Further, County Court's imposition of the maximum possible term of postrelease supervision is well supported, considering the nature of the crime, defendant's prior criminal history, and his failure to accept responsibility or express remorse for his actions. We find no abuse of discretion by the sentencing court or extraordinary circumstances warranting modification ( see People v. Watson, 115 A.D.3d 1016, 1017, 981 N.Y.S.2d 627 [2014];People v. Jaeger, 96 A.D.3d 1172, 1175, 946 N.Y.S.2d 680 [2012],lv. denied19 N.Y.3d 997, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012] ).
ORDERED that the judgment is affirmed. LAHTINEN, J.P., STEIN and ROSE, JJ., concur.