Opinion
694 KA 19-00778
10-01-2021
The PEOPLE of the State of New York, Respondent, v. Arthur MOORE, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of rape in the third degree ( Penal Law § 130.25 [3] ) and unlawful imprisonment in the second degree (§ 135.05). We affirm.
Viewing the evidence in light of the elements of the crime of rape in the third degree 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 reject defendant's contention that the verdict with respect to that crime is 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] ). "Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor" ( People v. Streeter , 118 A.D.3d 1287, 1288, 987 N.Y.S.2d 775 [4th Dept. 2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014], reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014] [internal quotation marks omitted]). "The jury was entitled to credit the testimony of the People's witnesses ... over the testimony of defendant's witnesses, including that of defendant [himself]," and we perceive no reason to disturb those credibility determinations ( People v. Tetro , 175 A.D.3d 1784, 1788, 109 N.Y.S.3d 776 [4th Dept. 2019] ). In particular, we note that there was nothing about the victim's testimony that was "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Barnes , 158 A.D.3d 1072, 1073, 70 N.Y.S.3d 679 [4th Dept. 2018], lv denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018] [internal quotation marks omitted]; see People v. Smith , 73 A.D.3d 1469, 1470, 900 N.Y.S.2d 802 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ). We also note that the victim's testimony that defendant engaged in sexual intercourse with her was corroborated by physical evidence, supporting the jury's rejection of defendant's testimony to the contrary (see People v. King , 21 A.D.3d 1319, 1319, 801 N.Y.S.2d 195 [4th Dept. 2005], lv denied 6 N.Y.3d 755, 810 N.Y.S.2d 423, 843 N.E.2d 1163 [2005] ).
Defendant's contention that he was deprived of a fair trial due to instances of prosecutorial misconduct during the prosecutor's opening statement and on summation is unpreserved because defense counsel did not object to any of the purportedly improper comments (see CPL 470.05 [2] ; People v. Romero , 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ; People v. O'Donnell , 195 A.D.3d 1430, 1433, 148 N.Y.S.3d 589 [4th Dept. 2021], lv denied 37 N.Y.3d 994, 152 N.Y.S.3d 425, 174 N.E.3d 365 [2021] ; People v. Carlson , 184 A.D.3d 1139, 1142, 125 N.Y.S.3d 803 [4th Dept. 2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 374, 152 N.E.3d 1176 [2020] ). 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, contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe.