Opinion
1498 KA 14–00309
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Kevin WILSON, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him, after a jury trial, of rape in the third degree ( Penal Law § 130.25[2] ) and endangering the welfare of a child (§ 260.10[1] ), defendant contends that reversal is required because Supreme Court failed to comply with the requirements of CPL 310.30 in accordance with People v. O'Rama, 78 N.Y.2d 270, 276–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) in responding to a certain jury note. Specifically, defendant contends that the court failed to mark the jury note as an exhibit or show the note to him before responding to it. As a preliminary matter, we note that defendant failed to preserve his contention for our review. Where, as here, "counsel has meaningful notice of a substantive jury note because the court has read the precise content of the note into the record in the presence of counsel, defendant, and the jury ... [c]ounsel is required to object to the court's procedure to preserve any [alleged] error for appellate review" ( People v. Nealon , 26 N.Y.3d 152, 161–162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015] ; see People v. Mack , 27 N.Y.3d 534, 538–539, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016] ; People v. Morris , 27 N.Y.3d 1096, 1098, 36 N.Y.S.3d 52, 55 N.E.3d 1025 [2016] ). Here, counsel failed to object to the court's procedure in responding to the jury note, and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
In contrast, defendant objected to the court's substantive response to the jury note, thereby preserving for our review his contention that the court should have included in a readback of testimony to the jury the victim's testimony on cross-examination. We nevertheless conclude that defendant's contention is without merit. The jury's note requested the victim's testimony concerning her last sexual encounter with defendant. It is well settled that "[a] request for a reading of testimony generally is presumed to include cross-examination [that] impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise" ( People v. Morris , 147 A.D.3d 873, 874, 46 N.Y.S.3d 667 [2d Dept. 2017] [internal quotation marks omitted]; see People v. Berger , 188 A.D.2d 1073, 1074, 592 N.Y.S.2d 173 [4th Dept. 1992], lv denied 81 N.Y.2d 881, 597 N.Y.S.2d 942, 613 N.E.2d 974 [1993] ). In this case, however, "there was no cross-examination testimony relevant to the matters requested by the jury" ( People v. Grant , 127 A.D.3d 990, 991, 6 N.Y.S.3d 648 [2d Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] ; see generally People v. Conroy , 102 A.D.3d 979, 981, 958 N.Y.S.2d 224 [2d Dept. 2013], lv denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013] ; People v. Murray , 258 A.D.2d 936, 936–937, 685 N.Y.S.2d 876 [4th Dept. 1999], lv denied 93 N.Y.2d 927, 693 N.Y.S.2d 511, 715 N.E.2d 514 [1999] ), and we therefore conclude that the court did not err in its response to the jury note. Even assuming, arguendo, that the court erred in refusing to permit the disputed cross-examination testimony to be read back to the jury, we conclude that reversal is not required inasmuch as "defendant failed to show that any alleged omission of relevant testimony from the readback caused prejudice" to him ( People v. Aller , 33 A.D.3d 621, 622, 821 N.Y.S.2d 657 [2d Dept. 2006], lv dismissed 8 N.Y.3d 918, 834 N.Y.S.2d 509, 866 N.E.2d 455 [2007] ; see People v. Schafer , 81 A.D.3d 1361, 1362, 916 N.Y.S.2d 414 [4th Dept. 2011], lv denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] ).
We reject defendant's contention that the rape conviction is not supported by legally sufficient evidence because the trial evidence was insufficient to establish that he was over 21 years old when he committed the crime of statutory rape in the third degree ( Penal Law § 130.25 [2 ] ). Here, we conclude that there is a valid line of reasoning and permissible inferences by which the jury could have determined that the birth certificate admitted in evidence belonged to defendant and, coupled with other evidence presented by the People, that defendant was 29 years old when he began his relationship with the victim (see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Griffin , 48 A.D.3d 1233, 1235–1236, 851 N.Y.S.2d 808 [4th Dept. 2008], lv denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86 [2008] ; see also People v. Perryman , 178 A.D.2d 916, 918, 578 N.Y.S.2d 785 [4th Dept. 1991], lv denied 79 N.Y.2d 1005, 584 N.Y.S.2d 460, 594 N.E.2d 954 [1992] ; People v. Patterson , 149 A.D.2d 966, 966, 540 N.Y.S.2d 626 [4th Dept. 1989], lv denied 74 N.Y.2d 745, 545 N.Y.S.2d 119, 543 N.E.2d 762 [1989] ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.