Opinion
KA 01-01313.
February 11, 2004.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered May 14, 2001. The judgment convicted defendant, upon a jury verdict, of incest (18 counts).
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), CRAIG D. CHARTIER, FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (ARTHUR G. WEINSTEIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PINE, J.P., WISNER, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of 18 counts of incest (Penal Law § 255.25). Contrary to defendant's contention, the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). Contrary to defendant's further contention, County Court properly allowed defendant's daughter to testify with respect to acts that predate those with which defendant was charged in order to explain the progressive nature of the sexual conduct. The court also properly allowed defendant's daughter to testify that defendant required her to engage in sexual acts on a regular basis when she returned home from college during holidays and summer vacations and that defendant threatened the use of his service weapon issued to him as a police officer in order to obtain her compliance with his demands. The court properly determined that the probative value of that testimony outweighed its potential for prejudice insofar as it established the element of forcible compulsion in the counts charging rape in the first degree (§ 130.35 [1]) and sodomy in the first degree (former § 130.50 [1]), of which defendant was acquitted, and explained the failure of defendant's daughter to report the crimes promptly ( see People v. Chase, 277 A.D.2d 1045, lv denied 96 N.Y.2d 733). The sentence is neither unduly harsh nor severe. We have reviewed defendant's remaining contention and conclude that it is without merit.