Opinion
No. 721 KA 23-00692
11-15-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JASON EKIERT, DEFENDANT-APPELLANT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (RYAN P. ASHE OF COUNSEL), FOR RESPONDENT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (RYAN P. ASHE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, GREENWOOD, AND HANNAH, JJ.
Appeal from a judgment of the Monroe County Court (Karen Bailey Turner, J.), rendered December 14, 2022. The judgment convicted defendant after a nonjury trial of criminal sexual act in the second degree (two counts), sexual abuse in the third degree and criminal sexual act in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of two counts of criminal sexual act in the second degree (Penal Law former § 130.45 [1]), one count of sexual abuse in the third degree (§ 130.55), and one count of criminal sexual act in the third degree (former § 130.40 [2]). We reject defendant's contention that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we conclude that, although an acquittal would not have been unreasonable, it cannot be said that County Court failed to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987])." 'In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference'" (People v McCoy, 100 A.D.3d 1422, 1422 [4th Dept 2012]). Here, although there were some inconsistencies in the victim's testimony, we conclude that "[t]he victim's testimony was not 'so inconsistent or unbelievable as to render it incredible as a matter of law'" (People v Lewis, 129 A.D.3d 1546, 1548 [4th Dept 2015], lv denied 26 N.Y.3d 969 [2015]; see People v Ptak, 37 A.D.3d 1081, 1082 [4th Dept 2007], lv denied 8 N.Y.3d 949 [2007]) and that there is no basis for disturbing the court's credibility determinations in this case. Although the court acquitted defendant of some charges in the indictment, the court was entitled to credit some parts of the victim's testimony while rejecting others (see People v Toft, 156 A.D.3d 1234, 1235 [3d Dept 2017]; People v Jemes, 132 A.D.3d 1361, 1362 [4th Dept 2015], lv denied 26 N.Y.3d 1110 [2016]).
To the extent that defendant contends that he was convicted on the basis of an uncharged theory of guilt, that contention is not preserved for our review (see People v Abdullah, 194 A.D.3d 1346, 1347 [4th Dept 2021], lv denied 37 N.Y.3d 990 [2021]; People v Hursh, 191 A.D.3d 1453, 1454 [4th Dept 2021], lv denied 37 N.Y.3d 957 [2021]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant contends that the sentence is unduly harsh and severe and that the court took into account improper sentencing factors when sentencing him. Contrary to defendant's contention, the court properly considered uncharged criminal conduct to the extent that it found the information reliable and accurate (see People v Bratcher, 291 A.D.2d 878, 879 [4th Dept 2002], lv denied 98 N.Y.2d 673 [2002]; People v Brunner, 182 A.D.2d 1123, 1123 [4th Dept 1992], lv denied 80 N.Y.2d 828 [1992]; see also People v James, 140 A.D.3d 1628, 1628 [4th Dept 2016]; see generally People v Outley, 80 N.Y.2d 702, 712 [1993]). The court also did not err in considering statements defendant made to the police that had been suppressed (see People v Brown, 281 A.D.2d 700, 702 [3d Dept 2001], lv denied 96 N.Y.2d 826 [2001]; People v Mancini, 239 A.D.2d 436, 436 [2d Dept 1997], lv denied 90 N.Y.2d 907 [1997]; see also People v Estenson, 101 A.D.2d 687, 687 [4th Dept 1984]). The sentence is not unduly harsh or severe.
We have considered defendant's remaining contention and conclude that it does not warrant reversal or modification of the judgment.