Opinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Mark A. WESTBROOKS, Defendant–Appellant.
James E. Neuman, New York City, for Defendant–Appellant. Leanne K. Moser, District Attorney, Lowville (John A. Cirando of Counsel), for Respondent.
James E. Neuman, New York City, for Defendant–Appellant. Leanne K. Moser, District Attorney, Lowville (John A. Cirando of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a jury trial of rape in the first degree (Penal Law § 130.35[1] ), defendant contends that the verdict is against the weight of the evidence. We reject that contention. This case turned largely upon the credibility of the victim, and it is well settled that “[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 [internal quotation marks omitted]; see People v. Erle, 83 A.D.3d 1442, 919 N.Y.S.2d 742, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097). Although there were various inconsistencies in the victim's trial testimony, it cannot be said that her testimony was “manifestly untrue, physically impossible, contrary to experience, or self-contradictory” ( People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448, lv. denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444; see People v. Moore [Appeal No. 2], 78 A.D.3d 1658, 1659–1660, 912 N.Y.S.2d 825). Furthermore, we note that the People introduced evidence establishing that defendant fled to Ohio after the victim contacted the police, and such evidence of defendant's flight was admissible as circumstantial evidence of his consciousness of guilt ( see People v. Zuhlke, 67 A.D.3d 1341, 890 N.Y.S.2d 231, lv. denied 14 N.Y.3d 774, 898 N.Y.S.2d 106, 925 N.E.2d 111).
We reject defendant's further contention that County Court erred in allowing the People during their direct case to elicit testimony that defendant slapped the victim while they were arguing two days before the rape occurred. Evidence of a defendant's prior abusive or controlling behavior toward a victim is “ ‘admissible for the purpose of establishing the element of forcible compulsion and the victim's delayed reporting’ ” ( People v. King, 56 A.D.3d 1193, 1194, 867 N.Y.S.2d 598, lv. denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445). That principle applies even where, as here, “the defense is not consensual sex, but that the rape never occurred and that the [victim's] allegation was a lie” ( People v. Cook, 93 N.Y.2d 840, 841, 688 N.Y.S.2d 89, 710 N.E.2d 654). Defendant failed to preserve for our review his contention that the court erred in failing to give a limiting instruction with regard to that evidence ( see People v. Wright, 5 A.D.3d 873, 876, 773 N.Y.S.2d 486, lv. denied 3 N.Y.3d 651, 782 N.Y.S.2d 422, 816 N.E.2d 212), as well as his contention that the court erred in admitting evidence that he was absent without leave from the United States Army following the rape ( see CPL 470.05[2] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ).
Finally, defendant contends that he was deprived of a fair trial by alleged prosecutorial misconduct on summation. Defendant did not object to most of the alleged improper comments and thus failed to preserve his contention for our review with respect to those comments ( see CPL 470.05[2] ). In any event, we conclude that “[t]he claimed instances of prosecutorial misconduct were not so egregious that defendant was deprived of a fair trial” ( People v. Plant, 138 A.D.2d 968, 526 N.Y.S.2d 300, lv. denied 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 59).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.