Opinion
2013-11-15
The PEOPLE of the State of New York, Respondent, v. Mark WOODWORTH, Defendant–Appellant.
Genesee Valley Legal Aid, Geneseo (Kelley Provo of Counsel), for Defendant–Appellant. Gregory J. Mccaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Genesee Valley Legal Aid, Geneseo (Kelley Provo of Counsel), for Defendant–Appellant. Gregory J. Mccaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of sexual abuse in the first degree (Penal Law § 130.65[1] ), assault in the second degree as a sexually motivated felony (§§ 120.05[2]; 130.91), attempted assault in the second degree as a sexually motivated felony (§§ 110.00, 120.05[1]; 130.91), unlawful imprisonment in the first degree (§ 135.10) and coercion in the first degree (§ 135.65[1] ). We conclude that defendant waived his contention that the People failed to establish venue with respect to those crimes inasmuch as he did not request a jury charge on improper venue ( see People v. Greenberg, 89 N.Y.2d 553, 556, 656 N.Y.S.2d 192, 678 N.E.2d 878; People v. Cornell, 17 A.D.3d 1010, 1011, 794 N.Y.S.2d 226, lv. denied5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157).
We reject defendant's further contention that County Court improperly admitted in evidence expert testimony regarding rape trauma syndrome. Such testimony is admissible “to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand” (People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084). Here, the expert testimony regarding rape trauma syndrome was admitted to explain why the victim may not have immediately reported the crimes, and the expert “did not attempt to impermissibly prove that the charged crimes occurred” ( see id.).
Contrary to defendant's contention, we conclude that, 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), 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). The jury's resolution of credibility issues is entitled to great weight, and there is no indication in the record that the jury failed to give the evidence the weight it should be accorded ( see People v. Kelley, 46 A.D.3d 1329, 1331, 847 N.Y.S.2d 813, lv. denied10 N.Y.3d 813, 857 N.Y.S.2d 46, 886 N.E.2d 811).
Defendant's contention that the prosecutor improperly vouched for the credibility of the victim during summation is not preserved for our review because he failed to object to the allegedly improper comments during summation ( see People v. Williams, 46 N.Y.2d 1070, 1071, 416 N.Y.S.2d 792, 390 N.E.2d 299). Defendant also failed to preserve for our review his contention that the prosecutor improperly impeached a prosecution witness ( see People v. Cruz, 23 A.D.3d 1109, 1110, 807 N.Y.S.2d 763, lv. denied6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Defendant further contends that the court improperly admitted in evidence photographs that had been enhanced by the People. We reject that contention. At trial, the People laid a proper foundation by authenticating the photographs ( see People v. Marra, 96 A.D.3d 1623, 1625–1626, 946 N.Y.S.2d 783, affd.21 N.Y.3d 979, 971 N.Y.S.2d 491, 994 N.E.2d 387; People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665). Additionally, the photographs were relevant with respect to the nature and extent of the victim's injuries, and their sole purpose was not “ ‘to arouse the emotions of the jury and to prejudice ... defendant’ ” (People v. Davis, 67 A.D.3d 1397, 1397, 889 N.Y.S.2d 328, lv. denied13 N.Y.3d 938, 895 N.Y.S.2d 328, 922 N.E.2d 917, quoting People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110; see People v. Wright, 107 A.D.3d 1398, 1400, 967 N.Y.S.2d 296). Defendant failed to preserve for our review his contention that a ring, which had been altered while in the People's possession, was improperly admitted in evidence ( see People v. Butts, 254 A.D.2d 823, 823, 680 N.Y.S.2d 761), and we decline to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Defendant also contends that the court's instruction to the jury improperly shifted the burden of proof to defendant. That contention is not preserved for our review because defendant did not object to the court's charge ( see People v. Shutter, 163 A.D.2d 871, 871, 559 N.Y.S.2d 834) and, in any event, that contention is without merit ( see generally People v. Castrechino, 24 A.D.3d 1267, 1267–1268, 808 N.Y.S.2d 858, lv. denied6 N.Y.3d 810, 812 N.Y.S.2d 450, 845 N.E.2d 1281). We also reject defendant's contention that his adjudication as a persistent violent felony offender was unconstitutional ( see generally People v. Quinones, 12 N.Y.3d 116, 125–131, 879 N.Y.S.2d 1, 906 N.E.2d 1033, cert. denied558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31).
Finally, we have reviewed defendant's contention in his pro se supplemental brief and conclude that it is without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.