Opinion
02-02-2024
The PEOPLE of the State of New York, Respondent, v. Michael A. SMITH, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (Kristina Karie, J.), rendered January 6, 2021. The judgment convicted defendant, upon a jury verdict, of rape in the first degree, criminal sexual act in the first degree and strangulation in the second degree.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, NOWAK, DELCONTE, AND KEANE, 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, upon a jury verdict, of rape in the first degree (Penal Law § 130.35 [1]), criminal sexual act in the first degree (§ 130.50 [1]), and strangulation in the second degree (§ 121.12). Beginning in approximately 2012, defendant, then age 47, began to groom the victim, a 13-year-old girl, over the course of a number of years by, inter alia, engaging in a coordinated effort to surreptitiously communicate with the victim, alienating her from her family, and engaging in a sexual relationship with the victim. The People alleged that after defendant was released from incarceration in an unrelated matter, defendant began to use physical force to rape and strangle the victim. After a years-long relationship, the victim ultimately reported defendant’s conduct to the police.
[1] We reject defendant’s contention that County Court abused its discretion in granting the People’s Molineux application and permitting the victim to testify regarding her relationship with defendant prior to his use of physical force and regarding uncharged acts of sexual abuse perpetrated by defendant against the victim during the course of their relationship. That testimony was necessary to complete the narrative and provide proper context for the offenses charged in the indictment and was also properly admitted to establish the victim’s state of mind, the relationship between defendant and the victim, the delay in reporting, and the element of forcible compulsion (see People v. Brown, 128 A.D.3d 1183, 1184-1185, 9 N.Y.S.3d 434 [3d Dept. 2015], lv denied 27 N.Y.3d 993, 38 N.Y.S.3d 103, 59 N.E.3d 1215 [2016]; see also People v. Hu Sin, 217 A.D.3d 1439, 1439-1440, 190 N.Y.S.3d 777 [4th Dept. 2023]; People v. Burney, 204 A.D.3d 1473, 1477, 166 N.Y.S.3d 798 [4th Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 456, 191 N.E.3d 408 [2022]).
[2, 3] Moreover, by repeatedly giving appropriate limiting instructions during the victim’s testimony about the purpose for which the jury was to consider the Molineux evidence and reiterating its limiting instruction during the jury charge, the court mitigated any prejudice to defendant (see Hu Sin, 217 A.D.3d at 1440, 190 N.Y.S.3d 777). The court explicitly instructed the jurors that they were not to consider the victim’s testimony regarding her prior relationship with defendant "for the purpose of proving that … defendant had a propensity or predisposition to commit the crime[s] charged in this case" (id. [internal quotation marks omitted]). Any claim of prejudice necessarily relies on the assumption that the jury ignored the court’s limiting instructions, and "the law does not permit such an assumption" (People v. Cutaia, 167 A.D.3d 1534, 1535, 90 N.Y.S.3d 444 [4th Dept. 2018], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 195, 123 N.E.3d 854 [2019]; see Hu Sin, 217 A.D.3d at 1440, 190 N.Y.S.3d 777).
To the extent that defendant preserved for our review his contention that the conviction is not supported by legally sufficient evidence (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]), that contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Further, 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 reject defendant’s contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
[4, 5] By failing to object during the prosecutor’s summation, defendant failed to preserve for our review his contention that allegedly improper comments made by the prosecutor during summation deprived him of a fair trial (see People v. Cooley, 220 A.D.3d 1189, 1191, 197 N.Y.S.3d 790 [4th Dept. 2023]; People v. Graham, 171 A.D.3d 1566, 1570, 99 N.Y.S.3d 562 [4th Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 689, 130 N.E.3d 1299 [2019]). In any event, we conclude that the allegedly improper comments were a "fair response to the comments made by the defense or fair comment on the evidence," and therefore that defen- dant was not deprived of a fair trial by those remarks (People v. Palmer, 204 A.D.3d 1512, 1514, 167 N.Y.S.3d 697 [4th Dept. 2022], lv denied 38 N.Y.3d 1190, 176 N.Y.S.3d 207, 197 N.E.3d 487 [2022]).
Finally, contrary to defendant’s contention, his sentence is not unduly harsh or severe.