Opinion
1271 KA 16–00440
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Ramiro ARMENDARIZ, Defendant–Appellant.
JOSHUA P. BANNISTER, HERKIMER, FOR DEFENDANT–APPELLANT. CHRISTOPHER BOKELMAN, ACTING DISTRICT ATTORNEY, LYONS (JACQUELINE MCCORMICK OF COUNSEL), FOR RESPONDENT.
JOSHUA P. BANNISTER, HERKIMER, FOR DEFENDANT–APPELLANT.
CHRISTOPHER BOKELMAN, ACTING DISTRICT ATTORNEY, LYONS (JACQUELINE MCCORMICK OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the third degree ( Penal Law § 130.25[2] ) and endangering the welfare of a child (§ 260.10[1] ). The conviction is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and, when the evidence is viewed in light of the elements of the crimes as charged to the jury, the verdict is not against the weight of the evidence (see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Contrary to defendant's contention, his "statement of his [date of birth] given to a police officer who elicited pedigree information" constitutes legally sufficient evidence that defendant was over 21 years old when he engaged in sexual intercourse with the 16–year–old victim ( People v. White, 149 A.D.2d 939, 939, 540 N.Y.S.2d 72 [4th Dept. 1989], lv denied 74 N.Y.2d 821, 546 N.Y.S.2d 579, 545 N.E.2d 893 [1989] ; see generally People v. Perryman, 178 A.D.2d 916, 917, 578 N.Y.S.2d 785 [4th Dept. 1991], lv denied 79 N.Y.2d 1005, 584 N.Y.S.2d 460, 594 N.E.2d 954 [1992] ). Contrary to defendant's further contention, the victim's functionally interchangeable descriptions of the length of her sexual encounter with defendant are not internally inconsistent, and they do not persuade us that the verdict is against the weight of the evidence.
Defendant received effective assistance of counsel (see generally People v. Clark, 28 N.Y.3d 556, 562–563, 69 N.E.3d 604 [2016] ). The alleged improprieties in the prosecutor's summation were not so egregious that counsel was ineffective by failing to object (see People v. Koonce, 111 A.D.3d 1277, 1278–1279, 974 N.Y.S.2d 207 [4th Dept. 2013] ). Moreover, "although it was improper for the prosecutor to question prospective jurors about their attitudes towards the laws of New York pertaining to [statutory rape] ..., defendant has failed to show the absence of a strategic reason for counsel's failure to object[ so] as to support a finding of ineffective assistance of counsel" ( People v. LaDuke, 140 A.D.3d 1467, 1470, 34 N.Y.S.3d 688 [3d Dept. 2016] )
Defendant's remaining contentions are unpreserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Finally, we note that the certificate of conviction contains several errors regarding the sentences imposed, and it must be amended to reflect the correct sentences of 120 days of incarceration and 10 years of probation on count one, and three years of probation on count two (see generally People v. Kemp, 112 A.D.3d 1376, 1377, 977 N.Y.S.2d 536 [4th Dept. 2013] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.