Opinion
No. 796 KA 21-01079
11-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DALE J. FINSTER, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, SYRACUSE (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, SYRACUSE (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND NOWAK, JJ.
Appeal from a judgment of the Ontario County Court (Brian D. Dennis, J.), rendered July 10, 2018. The judgment convicted defendant upon a jury verdict of criminal sexual act in the second degree (four counts) and endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of four counts of criminal sexual act in the second degree (Penal Law § 130.45 [1]) and one count of endangering the welfare of a child (§ 260.10 [1]). The conviction arises from defendant's actions in engaging in oral sexual conduct with a 14-year-old victim, whom defendant supplied with alcohol and marihuana.
Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as his motion for a trial order of dismissal was not "specifically directed at" any alleged shortcoming in the evidence now raised on appeal (People v. Ford, 148 A.D.3d 1656, 1657 [4th Dept 2017], lv denied 29 N.Y.3d 1079 [2017] [internal quotation marks omitted]; see People v. Gray, 86 N.Y.2d 10, 19 [1995]; People v. Simmons, 133 A.D.3d 1227, 1227 [4th Dept 2015]).
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 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495 [1987]). The resolution of issues of credibility and the weight to be accorded to the evidence are primarily questions to be determined by the jury (see People v. Abon, 132 A.D.3d 1235, 1236 [4th Dept 2015], lv denied 27 N.Y.3d 1127 [2016]). Here, the jury had the opportunity to see and hear the victim's testimony about the encounters with defendant. It also had an opportunity to hear from defendant through the admission in evidence of an audio recording of a police interview. "Great deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" (Bleakley, 69 N.Y.2d at 495; see People v. Mateo, 2 N.Y.3d 383, 410 [2004], cert denied 542 U.S. 946 [2004]; People v. Gay, 105 A.D.3d 1427, 1428 [4th Dept 2013]), and we perceive no basis for disturbing the jury's determination in this case.
We reject defendant's contention that he was deprived of a fair trial by misconduct on the part of the prosecutor during the opening statement. Even assuming, arguendo, that the prosecutor's comments were improper, we conclude that they were "not so egregious as to deprive defendant of a fair trial" (People v. Love, 134 A.D.3d 1569, 1570-1571 [4th Dept 2015], lv denied 27 N.Y.3d 967 [2016]; see People v. Figgins, 72 A.D.3d 1599, 1600 [4th Dept 2010], lv denied 15 N.Y.3d 893 [2010]; People v. Sweney, 55 A.D.3d 1350, 1351 [4th Dept 2008], lv denied 11 N.Y.3d 901 [2008]), and that County Court's instructions during the jury charge ameliorated any prejudice to defendant (see People v. Morgan, 148 A.D.3d 1590, 1591 [4th Dept 2017], lv denied 29 N.Y.3d 1083 [2017]; see also People v. Warmley, 179 A.D.3d 1537, 1538 [4th Dept 2020], lv denied 35 N.Y.3d 945 [2020]).
The sentence is not unduly harsh or severe. We have considered defendant's remaining contentions and conclude that they are without merit.