Opinion
No. KA 06-03538.
November 12, 2010.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.), rendered November 9, 2006. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree and endangering the welfare of a child.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF COUNSEL), FOR RESPONDENT.
Present — Smith, J.P., Fahey, Lindley, Sconiers and Gorski, JJ.
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, inter alia, course of sexual conduct against a child in the first degree (Penal Law § 130.75 [b]) and course of sexual conduct against a child in the second degree (§ 130.80 [1] [a]). Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct during summation ( see People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849) and, in any event, that contention is without merit. "[T]he prosecutor's closing statement must be evaluated in light of the defense summation, which put into issue the complainants' character and credibility and justified the People's response" ( People v Halm, 81 NY2d 819, 821). The majority of the prosecutor's comments on summation were within "`the broad bounds of rhetorical comment permissible in closing argument `"( People v Williams, 28 AD3d 1059, 1061, aff'd 8 NY3d 854, quoting People v Galloway, 54 NY2d 396, 399), and they were a fair response to defense counsel's summation ( see People v Figgins, 72 AD3d 1599; People v Diggs, 24 AD3d 1261, lv denied 6 NY3d 812; People v Melendez, 11 AD3d 983, lv denied 4 NY3d 888). Even assuming, arguendo, that some of the prosecutor's comments were beyond those bounds, we conclude that they were not so egregious as to deprive defendant of a fair trial ( see Figgins, 72 AD3d 1599; People v Sweney, 55 AD3d 1350, 1351, lv denied 11 NY3d 901; People v Crawford, 299 AD2d 848, lv denied 99 NY2d 581, 653). Defendant also failed to preserve for our review his contention that the prosecutor improperly asked him on cross-examination whether prosecution witnesses were lying ( cf. People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Jarrells, 190 AD2d 120, 125-126). In any event, we conclude that defendant was not thereby denied a fair trial ( see People v Gonzalez, 206 AD2d 946, lv denied 84 NY2d 867).
Defendant further contends that the evidence is legally insufficient to support the conviction of course of sexual conduct against a child in the second degree inasmuch as the People failed to establish that the alleged sexual acts occurred "over a period of time not less than three months in duration" pursuant to Penal Law § 130.80 (1). Defendant failed to preserve that contention for our review ( see People v Gray, 86 NY2d 10, 19; People v Mills, 63 AD3d 1717, lv denied 13 NY3d 861) and, in any event, that contention is without merit. Viewing the evidence in the light most favorable to the People ( see People v Contes, 60 NY2d 620, 621), we conclude that there is a valid line of reasoning and permissible inferences from which a rational jury could conclude that the sexual conduct occurred for the requisite duration ( see People v Paramore, 288 AD2d 53, lv denied 97 NY2d 759; see also People v Johnson, 24 AD3d 967, 968, lv denied 6 NY3d 814; see generally People v Bleakley, 69 NY2d 490, 495). Defendant also failed to preserve for our review his contention that the evidence is legally insufficient to support the remaining counts ( see Gray, 86 NY2d at 19) and, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 NY2d at 495).
We reject the further contention of defendant that he was denied effective assistance of counsel ( see generally People v Baldi, 54 NY2d 137, 147). "With respect to defense counsel's failure to object to certain . . . testimony . . . [and alleged prosecutorial misconduct on summation], defendant failed to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's alleged shortcomings" ( People v Elliott, 73 AD3d 1444, 1445, lv denied 15 NY3d 773 [internal quotation marks omitted]; see People v Taylor, 1 NY3d 174, 176-178). Further, "[d]efense counsel's failure to make a motion for a trial order of dismissal on the ground raised on appeal does not constitute ineffective assistance of counsel because that motion would have had no chance of success" ( People v Hunter, 70 AD3d 1388, 1389, lv denied 15 NY3d 751; see generally People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702). Defendant's contention that defense counsel was ineffective in failing to present a proper foundation to permit the introduction of certain evidence involves matters outside the record on appeal and thus is properly raised by way of a motion pursuant to CPL article 440 ( see People v Barnes, 56 AD3d 1171; People v Jenkins, 25 AD3d 444, 445-446, lv denied 6 NY3d 834).