Opinion
2013-06-12
The PEOPLE, etc., respondent, v. Boris SHAULOV, appellant.
Stuart D. Rubin, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Bruce Alderman of counsel), for respondent.
Stuart D. Rubin, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Bruce Alderman of counsel), for respondent.
Appeal by the defendantfrom a judgment of the Supreme Court, Kings County (Guzman, J.), rendered March 27, 2012, convicting him of rape in the third degree (two counts), criminal sexual act in the third degree, endangering the welfare of a child, and sexual abuse in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant received the effective assistance of counsel under both the state constitutional standard ( see People v. Williams, 8 N.Y.3d 854, 855–856, 831 N.Y.S.2d 367, 863 N.E.2d 588;People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;People v. West, 105 A.D.3d 781, 961 N.Y.S.2d 785) and the federal constitutional standard ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).
The defendant's contention that his right to confrontation was violated ( see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177) is not preserved for appellate review ( see People v. Fleming, 70 N.Y.2d 947, 524 N.Y.S.2d 670, 519 N.E.2d 616;People v. Marino, 21 A.D.3d 430, 431, 800 N.Y.S.2d 439;see also People v. Galloway, 54 N.Y.2d 396, 400, 446 N.Y.S.2d 9, 430 N.E.2d 885) and, in any event, is without merit ( see Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224;Crawford v. Washington, 541 U.S. at 53–54).
“The decision to declare a mistrial rests within the sound discretion of the trial court, which is in the best position to determine if this drastic remedy is truly necessary to protect the defendant's right to a fair trial” ( People v. Way, 69 A.D.3d 964, 965, 893 N.Y.S.2d 265). Here, the Supreme Court did not improvidently exercise its discretion in denying the defendant's motion for a mistrial on the ground of unfair surprise.
The defendant's remaining contentions are unpreserved for appellate review ( see CPL 470.05[2]; People v. Galloway, 54 N.Y.2d at 400, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Malave, 7 A.D.3d 542, 775 N.Y.S.2d 588) and, in any event, are without merit ( see People v. Spicola, 16 N.Y.3d 441, 462–463, 465, 922 N.Y.S.2d 846, 947 N.E.2d 620;People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084;People v. Rosario, 100 A.D.3d 660, 953 N.Y.S.2d 299;People v. Terry, 85 A.D.3d 1485, 1488, 926 N.Y.S.2d 216).