Opinion
95 KA 17–00453
05-03-2019
The PEOPLE of the State of New York, Respondent, v. Clifton HUNT, Also Known as Peter Hunt, Defendant–Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (KIMBERLY J. CZAPRANSKI OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (KIMBERLY J. CZAPRANSKI OF COUNSEL), FOR DEFENDANT–APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt 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 rape in the third degree ( Penal Law § 130.25[2] ) and endangering the welfare of a child (§ 260.10[1] ). The conviction arises from defendant engaging in sexual intercourse with a 15–year–old victim. Preliminarily, defendant's challenge to the legal sufficiency of the evidence is unpreserved for our review because his general 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, 50 N.Y.S.3d 226 [4th Dept. 2017], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017], quoting People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Simmons, 133 A.D.3d 1227, 1227, 18 N.Y.S.3d 808 [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, 849 N.Y.S.2d 480, 880 N.E.2d 1 [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, 515 N.Y.S.2d 761, 508 N.E.2d 672 [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, 17 N.Y.S.3d 206 [4th Dept. 2015], lv denied 27 N.Y.3d 1127, 39 N.Y.S.3d 109, 61 N.E.3d 508 [2016] ) and, here, the jury had the opportunity to see and hear the victim's testimony about the sexual encounter with defendant, which was detailed, coherent and internally consistent. "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, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ; People v. Gay, 105 A.D.3d 1427, 1428, 963 N.Y.S.2d 898 [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 summation. The comments by the prosecutor were not so egregious as to deny defendant a fair trial (see People v. Ielfield, 132 A.D.3d 1298, 1299, 18 N.Y.S.3d 229 [4th Dept. 2015], lv denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 [2016] ; People v. Hunter, 115 A.D.3d 1330, 1331, 982 N.Y.S.2d 664 [4th Dept. 2014], lv denied 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014] ), and any potential prejudice was alleviated by County Court's rulings and instructions to the jury (see People v. Flowers, 151 A.D.3d 1843, 1844, 57 N.Y.S.3d 598 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ), which the jury is presumed to have followed (see People v. Allen, 78 A.D.3d 1521, 1521, 911 N.Y.S.2d 528 [4th Dept. 2010], lv denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 [2011] ).
Defendant further contends that he was denied effective assistance of counsel. We reject that contention. Defendant failed to meet his burden of demonstrating "the absence of strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Carver, 27 N.Y.3d 418, 421, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016] ). Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Inasmuch as defendant failed to raise in the trial court his contention that he was denied the right to confront witnesses, that contention is not preserved for our review (see People v. Liner, 9 N.Y.3d 856, 856–857, 840 N.Y.S.2d 755, 872 N.E.2d 868 [2007], rearg. denied 9 N.Y.3d 941, 844 N.Y.S.2d 782, 876 N.E.2d 510 [2007] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Finally, the sentence is not unduly harsh or severe.