Opinion
5990 Ind. 3733/10
03-15-2018
The PEOPLE of the State of New York, Respondent, v. Kermitt SMITH, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Robert C. McIver of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Robert C. McIver of counsel), for respondent.
Acosta, P.J., Richter, Kapnick, Kahn, Gesmer, JJ.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered September 22, 2014, convicting defendant, after a jury trial, of sexual abuse in the first degree, course of sexual conduct in the second degree and endangering the welfare of a child, and sentencing him, as a second felony offender, to an aggregate term of seven years, unanimously affirmed.
Defendant did not preserve any of his arguments concerning evidence of uncharged crimes he committed against the victim's siblings, and we decline to review them in the interest of justice.
Defendant did not preserve his claim that, at sentencing, the prosecutor improperly commented on defendant's exercise of his right to a trial, and we do not find that any exception to the preservation requirement applies (see People v. Autry , 75 N.Y.2d 836, 552 N.Y.S.2d 908, 552 N.E.2d 156 [1990] ; see also People v. Hurley , 75 N.Y.2d 887, 554 N.Y.S.2d 469, 553 N.E.2d 1017 [1990] ). We decline to review this unpreserved claim in the interest of justice. As an alternative holding, we reject it on the merits. Nothing in the record suggests that the court's sentence was influenced by an isolated remark by the prosecutor, even if the remark could have been understood to suggest that defendant should be penalized for exercising his right to a trial.
We have considered and rejected defendant's ineffective assistance of counsel claims relating to lack of preservation (see People v. Benevento , 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Accordingly, we do not find that any lack of preservation may be excused on the ground of ineffective assistance.