Opinion
2015-07-01
The PEOPLE, etc., respondent, v. Gerald HATCHER, appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, Eunice Y. Lee, and Arieh Schulman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, Eunice Y. Lee, and Arieh Schulman of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Riviezzo, J.), rendered December 13, 2011, convicting him of rape in the first degree (four counts), sexual abuse in the second degree (four counts), sexual misconduct (four counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention regarding the testimony elicited from the People's expert as to why victims of sexual abuse or rape may delay in reporting the crime is unpreserved for appellate review ( see CPL 470.05[2]; People v. Ennis, 107 A.D.3d 1617, 969 N.Y.S.2d 284; People v. Clas, 54 A.D.3d 770, 863 N.Y.S.2d 493). In any event, the expert's testimony was properly offered for the purpose of helping to explain the complainant's behavior after the subject rapes, which was not within the knowledge of the average juror ( see People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084; People v. Torres, 78 A.D.3d 866, 910 N.Y.S.2d 381; People v. Gillard, 7 A.D.3d 540, 541, 776 N.Y.S.2d 95). Contrary to the defendant's contention, it was not inconsistent, under the circumstances, to allow this testimony while also allowing evidence regarding the outcry the complainant made when the first suitable opportunity arose ( see People v. Shelton, 1 N.Y.3d 614, 777 N.Y.S.2d 9, 808 N.E.2d 1268; People v. Rice, 75 N.Y.2d 929, 931, 555 N.Y.S.2d 677, 554 N.E.2d 1265; People v. Caban, 126 A.D.3d 808, 6 N.Y.S.3d 73).
The defendant's contention that his right to confrontation was violated ( see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177) is unpreserved for appellate review and, in any event, without merit ( see People v. Johnson, 127 A.D.3d 785, 4 N.Y.S.3d 541; People v. Tucker, 117 A.D.3d 1090, 986 N.Y.S.2d 246; People v. Fucito, 108 A.D.3d 777, 969 N.Y.S.2d 563).
The defendant's contention that he was deprived of his right to a fair trial by certain remarks made by the prosecutor during summation is also unpreserved for appellate review ( seeCPL 470.05[2]; People v. Clemente, 84 A.D.3d 829, 830–831, 922 N.Y.S.2d 193; People v. Charles, 57 A.D.3d 556, 556, 869 N.Y.S.2d 564; People v. Gill, 54 A.D.3d 965, 966, 864 N.Y.S.2d 135). In any event, the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the defense counsel's summation ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564).
Since he did not set forth the issue on the record at the time of sentencing, the defendant also failed to preserve for appellate review his contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial ( see People v. Hurley, 75 N.Y.2d 887, 554 N.Y.S.2d 469, 553 N.E.2d 1017; People v. Simmons, 29 A.D.3d 1024, 815 N.Y.S.2d 484). In any event, the Supreme Court did not impermissibly punish him for exercising his right to proceed to trial by imposing a sentence that was harsher than the one offered during plea negotiations ( see People v. Seignious, 114 A.D.3d 883, 885, 980 N.Y.S.2d 561; People v. Robinson, 84 A.D.3d 1277, 1277–1278, 923 N.Y.S.2d 879; People v. Price, 256 A.D.2d 596, 597, 685 N.Y.S.2d 72; cf. People v. Simmons, 29 A.D.3d 1024, 815 N.Y.S.2d 484). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's contention that he was deprived of his constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “mixed claim” of ineffective assistance ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel ( see People v. McBride, 103 A.D.3d 920, 921, 959 N.Y.S.2d 671; People v. Ropiza, 100 A.D.3d 935, 936, 954 N.Y.S.2d 188). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).
The contentions raised in the defendant's pro se supplemental brief regarding the prosecution's alleged failure to correct allegedly false testimony are unpreserved for appellate review and, in any event, are without merit ( see People v. Clanton, 69 A.D.3d 754, 895 N.Y.S.2d 99).