Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Kevin L. DONALDSON, Sr., Defendant–Appellant.
James L. Dowsey, III, West Valley (Keliann M. Elniski of Counsel), for Defendant–Appellant.Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
James L. Dowsey, III, West Valley (Keliann M. Elniski of Counsel), for Defendant–Appellant.Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
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] ). We reject defendant's contention that County Court erred in admitting in evidence recorded telephone conversations between defendant and the victim. The People established a sufficient foundation to admit the recordings in evidence through the testimony of the victim, who identified the voices and recalled the conversations, and the testimony of the police lieutenant who witnessed the conversation and operated the recording equipment. Both witnesses testified that the recording was accurate and unaltered, and “[t]he People thus established that the offered evidence [was] genuine and that there [had] been no tampering with it” ( People v. Myers, 87 A.D.3d 826, 828, 928 N.Y.S.2d 407 [internal quotation marks omitted]; see generally People v. Ely, 68 N.Y.2d 520, 527–528, 510 N.Y.S.2d 532, 503 N.E.2d 88).
Defendant further contends that the evidence is legally insufficient to support the conviction because, inter alia, the People failed to present sufficient evidence to corroborate the victim's testimony. That contention is not preserved for our review inasmuch as defendant made only a general motion for a trial order of dismissal and failed to renew that motion after presenting evidence ( see People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430; People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, defendant's contention lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). There is no requirement of corroboration where, as here, the victim gave sworn testimony ( see People v. Lamphier, 302 A.D.2d 864, 865, 754 N.Y.S.2d 482, lv. denied 99 N.Y.2d 656, 760 N.Y.S.2d 120, 790 N.E.2d 294). Contrary to defendant's contention, he was not denied effective assistance of counsel based upon defense counsel's failure to renew that motion “because, in view of our determination that the evidence is indeed legally sufficient, defendant has not established that such a motion ‘would be meritorious upon appellate review’ ” ( People v. Carrasquillo, 71 A.D.3d 1591, 1591, 897 N.Y.S.2d 581, lv. denied 15 N.Y.3d 803, 908 N.Y.S.2d 162, 934 N.E.2d 896). 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), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant preserved for our review his further contention with respect to only one of the allegedly improper comments made by the prosecutor during summation, and we conclude that the court dispelled any prejudice arising from that comment when it sustained defendant's objection ( see People v. Rickard, 26 A.D.3d 800, 808 N.Y.S.2d 880, lv. denied 7 N.Y.3d 762, 819 N.Y.S.2d 887, 853 N.E.2d 258). In any event, we conclude that defendant's contention with respect to the remaining alleged instances of prosecutorial misconduct is without merit. Finally, we reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to object to those allegedly improper comments inasmuch as they did not constitute prosecutorial misconduct ( see People v. Hill, 82 A.D.3d 1715, 1716, 919 N.Y.S.2d 688, lv. denied 17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.