Opinion
197 KA 13-01468.
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Jason B. MORGAN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Linda M. Campbell of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Linda M. Campbell of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:On appeal from a judgment convicting him upon a jury verdict of rape in the first degree (Penal Law § 130.35[1] ) and criminal trespass in the second degree (§ 140.15[1] ), defendant contends that he was denied his right to present a complete defense when Supreme Court refused to allow him to present the testimony of a private investigator, who would testify that the investigator was unable to enter the victim's apartment through the window allegedly used by defendant to enter the apartment. We reject that contention. While it is true that a defendant's right to present witnesses to establish a defense is a "fundamental element of due process of law" (Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 ), "a defendant's right to present evidence is not absolute, but is subject to rules of evidence and procedure" (People v. Brown, 107 A.D.3d 1145, 1148, 967 N.Y.S.2d 206, lv. denied 22 N.Y.3d 1039, 981 N.Y.S.2d 373, 4 N.E.3d 385 ). Here, the testimony of the private investigator was not relevant to the issues at trial. Whether defendant's investigator was able to enter the apartment through the window at issue has no " ‘tendency in reason to prove the existence of any material fact’ " (People v. McCullough, 117 A.D.3d 1415, 1416, 984 N.Y.S.2d 532, lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 253, 17 N.E.3d 508 ), and the court therefore properly excluded that testimony.
We also reject defendant's contention that the court erred in admitting a recording of a telephone call between defendant and the victim wherein he threatened her three weeks before he raped her. Contrary to defendant's contention, the court applied the proper legal standard in determining that the People established a proper foundation for the recording's admission (see generally People v. Ely, 68 N.Y.2d 520, 527, 510 N.Y.S.2d 532, 503 N.E.2d 88 ).
Defendant further contends that he was denied a fair trial by prosecutorial misconduct on summation. Defendant failed to preserve his contention for our review to the extent that he alleges that the prosecutor improperly vouched for the victim's credibility and denigrated the defense (see People v. Simmons, 133 A.D.3d 1227, 1228, 18 N.Y.S.3d 808 ), and we decline to exercise our power to review those allegations as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). With respect to defendant's contention that the prosecutor engaged in misconduct by mischaracterizing the evidence on summation, we conclude that the prosecutor's statement on summation was isolated, and the court's instructions during the jury charge ameliorated any prejudice to defendant (see generally People v. Currier, 83 A.D.3d 1421, 1422–1423, 919 N.Y.S.2d 733, amended on rearg. 85 A.D.3d 1657, 924 N.Y.S.2d 872 ).Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Even assuming that a contrary verdict would not have been unreasonable, we conclude that nothing about the victim's testimony rendered it manifestly unworthy of belief, and " [r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury" (people v. witherSpoon, 66 a.d.3d 1456, 1457, 885 n.y.s.2d 829, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 ).
We reject defendant's challenge to the severity of the sentence. We have examined defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.