One of defendant's own witnesses, a classmate of the victims, testified that she saw him grab the breasts of the other minor females and he had grabbed her breasts as well. The jury could infer from his actions that defendant's intention in grabbing the victims' breasts was either for his sexual gratification or for the purpose of degrading or humiliating the victims ( see Penal Law § 130.52; People v Fuller, 50 AD3d 1171, 1175, lv denied 11 NY3d 788). Defendant basically argues that inconsistencies in the victims' testimony makes them unworthy of belief, but the inconsistencies were on minor details unrelated to the elements of the charges and none negated a finding of guilt ( see People v Conklin, 63 AD3d 1276, 1277, lv denied 13 NY3d 859; People v Scanlon, 52 AD3d 1035, 1039, lv denied 11 NY3d 741; see also People v Cecunjanin, 67 AD3d 1072, 1076). Although the jury did not find that defendant had intercourse or oral sex with one victim, or that he touched another victim's vagina, the jury could accept some of the victims' testimony while rejecting other portions of it ( see People v Kuykendall, 43 AD3d 493, 495-496, lv denied 9 NY3d 1007).
November 23, 2009. Appeal from the 3d Dept: 63 AD3d 1276 (Albany). Lippman, Ch. J.
Because the jury could have rejected the DNA evidence, discredited Pietrzak based upon his arrangement with the People and accepted the conflicting testimony of defendant as to his involvement, a different verdict would not have been unreasonable (seePeople v. Cade, 203 A.D.3d 1221, 1223–1224, 164 N.Y.S.3d 288 [2022] ; People v. Vandenburg, 189 A.D.3d 1772, 1776, 136 N.Y.S.3d 549 [2020], lv denied 36 N.Y.3d 1054, 140 N.Y.S.3d 873 , 140 N.Y.S.3d 873, 164 N.E.3d 960 [2021] ; People v. Wakefield, 175 A.D.3d 158, 165, 107 N.Y.S.3d 487 [2019], affd --- N.Y.3d ––––, 2022 WL 1217463 [2022], --- N.E.3d –––– ; People v. Whetstone, 136 A.D.3d 476, 476, 26 N.Y.S.3d 5 [2016], lv denied 27 N.Y.3d 1009, 38 N.Y.S.3d 117, 59 N.E.3d 1229 [2016] ; People v. Conklin, 63 A.D.3d 1276, 1277, 881 N.Y.S.2d 524 [2009], lv denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 [2009] ; People v. Khuong Dinh Pham, 31 A.D.3d 962, 965, 818 N.Y.S.2d 674 [2006] ). However, viewing the evidence in a neutral light while giving deference to the jury's credibility determinations leads us to the conclusion that the convictions are not against the weight of the evidence (seePeople v. Cade, 203 A.D.3d at 1224, 164 N.Y.S.3d 288, 164 N.Y.S.3d ; People v. Hodgins, 202 A.D.3d 1377, 1379, 1381, 162 N.Y.S.3d 569 [2022] ; People v. Hilton, 185 A.D.3d 1147, 1148, 126 N.Y.S.3d 242 [2020], lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 302, 155 N.E.3d 795 [2020] ; People v. Sindoni, 178 A.D.3d 1128, 1131, 115 N.Y.S.3d 161 [2019] ; People v. Mosley, 121 A.D.3d 1169, 1172–1173, 994 N.Y.S.2d 429 [2014], lv denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ).
As we have already discussed, the first failure to object (i.e., at voir dire) has not been shown to have had any prejudicial impact on the trial and the second (i.e., chain of custody) has not been established as meritorious such that an objection would have properly prevented admission of the cocaine. Moreover, review of the record reveals counsel's meaningful representation by appropriate motions, timely sustained objections, thorough cross-examination of witnesses and a reasonable defense strategy (see People v. Malcolm, 74 A.D.3d 1483, 1486, 902 N.Y.S.2d 264 [2010], lv. denied 15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ; People v. Conklin, 63 A.D.3d 1276, 1277, 881 N.Y.S.2d 524 [2009], lv. denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 [2009] ).ORDERED that judgment is affirmed.
As we have already discussed, the first failure to object (i.e., at voir dire) has not been shown to have had any prejudicial impact on the trial and the second (i.e., chain of custody) has not been established as meritorious such that an objection would have properly prevented admission of the cocaine. Moreover, review of the record reveals counsel's meaningful representation by appropriate motions, timely sustained objections, thorough cross-examination of witnesses and a reasonable defense strategy (see People v Malcolm, 74 AD3d 1483, 1486 [2010], lv denied 15 NY3d 954 [2010]; People v Conklin, 63 AD3d 1276, 1277 [2009], lv denied 13 NY3d 859 [2009]). Garry, Devine and Clark, JJ., concur.
The victim explained that after defendant arrived they began kissing and eventually moved to the bedroom where defendant “put his penis in [her] vagina.” While defendant highlights certain inconsistencies between the victim's in-court testimony and her out-of-court statements or other evidence in the record, and stresses the fact that she had been diagnosed with bipolar disorder and was hospitalized at the time of trial, these issues were fully explored at trial and do not render her testimony incredible as a matter of law ( see People v. Shepherd, 83 A.D.3d 1298, 1299, 921 N.Y.S.2d 666 [2011], lv. denied 17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011]; People v. Stearns, 72 A.D.3d 1214, 1216, 898 N.Y.S.2d 348 [2010], lv. denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010]; People v. Conklin, 63 A.D.3d 1276, 1277, 881 N.Y.S.2d 524 [2009], lv. denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 [2009] ). Moreover, despite defendant's assertion to the contrary, corroboration of the victim's testimony was not required because her incapacity to consent was a product of her age ( see People v. Carroll, 95 N.Y.2d 375, 383, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000]; People v. Alford, 287 A.D.2d 884, 886, 731 N.Y.S.2d 563 [2001], lv. denied 97 N.Y.2d 750, 742 N.Y.S.2d 610, 769 N.E.2d 356 [2002]; People v. Kelly, 270 A.D.2d 511, 512, 705 N.Y.S.2d 689 [2000], lv. denied 95 N.Y.2d 854, 714 N.Y.S.2d 5, 736 N.E.2d 866 [2000] ).
Finally, to the extent that defendant's pro se supplemental brief advances a claim of ineffective assistance of counsel, we find it to be without merit. Most of defendant's assertions pertain to matters outside the record on appeal and the proper recourse is a CPL article 440 motion ( see People v Smith, 63 AD3d 1301, 1304, lv denied 13 NY3d 862; People v Echavarria, 53 AD3d 859, 863-864, lv denied 11 NY3d 832). Notwithstanding the remaining claimed deficiencies, counsel's vigorous representation of defendant is reflected by his appropriate motion practice, effective evidentiary objections, thorough cross-examination of the People's witnesses, coherent theory in defense of the charges and ability to secure an acquittal on one count of the indictment ( see People v Conklin, 63 AD3d 1276, 1277, lv denied 13 NY3d 859; People v Scanlon, 52 AD3d 1035, 1040, lv denied 11 NY3d 741; People v Lewis, 46 AD3d at 947). Taken as a whole, the record reveals that defendant was afforded meaningful representation ( see People v Baldi, 54 NY2d 137, 147; People v Black, 65 AD3d 811, 815, lv denied 13 NY3d 905).