Opinion
107743
04-12-2018
The PEOPLE of the State of New York, Respondent, v. Edward A. ALEXANDER, Appellant.
Thomas H. Kheel, Ithaca, for appellant. Matthew VanHouten, District Attorney, Ithaca (Alyxandra Stanczak of counsel), for respondent.
Thomas H. Kheel, Ithaca, for appellant.
Matthew VanHouten, District Attorney, Ithaca (Alyxandra Stanczak of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P.
Appeal from a judgment of the County Court of Tompkins County (Cassidy, J.), rendered July 13, 2015, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (two counts) and endangering the welfare of a child.
In the early morning hours of January 1, 2014, after hosting a small gathering of family for a New Year's Eve party, defendant, an adult male, proceeded to engage in sexual conduct with the 12–year–old victim while she was sleeping. The victim reported the incident to her father and stepmother the following morning and a police report was filed later that same day. Defendant was thereafter charged with two counts of sexual abuse in the first degree and one count of endangering the welfare of child. Following a jury trial, defendant was convicted as charged. County Court thereafter sentenced him to two years in prison followed by three years of postrelease supervision for each count of sexual abuse in the first degree and one year in jail for endangering the welfare of a child, with the sentences to run concurrently. Defendant now appeals.
Defendant initially argues that the verdict was against the weight of the evidence. Where, as here, a different verdict would not have been unreasonable given that the testimony of the victim and defendant presented a "classic he-said she-said credibility determination for the jury to resolve" ( People v. Kiah, 156 A.D.3d 1054, 1056, 67 N.Y.S.3d 337 [2017] [internal quotation marks and citation omitted]; see People v. McCray, 102 A.D.3d 1000, 1003–1004, 958 N.Y.S.2d 511 [2013], affd 23 N.Y.3d 193, 989 N.Y.S.2d 649, 12 N.E.3d 1079 [2014] ), this Court "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted]; see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Here, the 12–year–old victim testified that, on the evening in question, she had accompanied her father and stepmother to the home of defendant and his family for a New Year's Eve party. She testified that, sometime after midnight, she fell asleep on the couch in the living room and awoke around 2:30 a.m. to defendant rubbing and squeezing her buttocks through her clothes and a blanket. As defendant began to move his hand from her buttocks toward her vaginal area, she "popped up" and confronted defendant, whom she testified responded, "don't tell your dad, don't tell your dad." The victim testified that she then left the living room to go sleep next to her father and stepmother—who were asleep in an adjacent room—and told them what had occurred later that same morning. The victim testified that, when confronted with the allegations that morning, defendant became visibly upset and apologized to her.
Defendant contends that the People failed to conclusively prove that the sexual abuse actually occurred and points to, among other things, certain inconsistencies in the victim's testimony, the fact there were no corroborating witnesses or physical evidence and the victim's delay in reporting the incident. The victim, however, was thoroughly cross-examined regarding the inconsistencies in her testimony, and there is nothing in the record before us that rendered her testimony inherently unbelievable or incredible as a matter of law (see People v. Bautista, 147 A.D.3d 1214, 1216, 47 N.Y.S.3d 503 [2017] ; People v. McCray, 102 A.D.3d at 1003–1004, 958 N.Y.S.2d 511 ). Moreover, the victim was competent to testify under oath without corroboration (see People v. Izzo, 104 A.D.3d 964, 966, 961 N.Y.S.2d 333 [2013], lv denied 21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 [2013] ), and the jury was free to consider the lack of physical proof of sexual contact as one of the factors in reaching its verdict (see People v. Colvin, 37 A.D.3d 856, 857, 828 N.Y.S.2d 716 [2007], lv denied 8 N.Y.3d 944, 836 N.Y.S.2d 555, 868 N.E.2d 238 [2007] ). Further, the victim's delay in reporting the incident was not protracted and, although defendant testified at trial and denied inappropriately touching the victim, the jury was entitled to credit the testimony of the victim over that of defendant (see People v. Planty, 155 A.D.3d 1130, 1132, 64 N.Y.S.3d 364 [2017], lv denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018] ; People v. Thiel, 134 A.D.3d 1237, 1239, 21 N.Y.S.3d 745 [2015], lv denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ). Accordingly, viewing the evidence in a neutral light and giving appropriate deference to the factfinder's credibility assessments, we are unpersuaded that the jury's verdict was against the weight of the evidence (see People v. Bautista, 147 A.D.3d at 1216–1217, 47 N.Y.S.3d 503; People v. Garcia, 141 A.D.3d 861, 863, 34 N.Y.S.3d 766 [2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; People v. Fernandez, 106 A.D.3d 1281, 1281–1286, 968 N.Y.S.2d 603 [2013] ).
Next, we find unavailing defendant's contention that he was denied a fair trial due to the People's violation of County Court's Sandoval ruling. Defendant correctly asserts—and the People acknowledge—that the People's question with respect to whether defendant spent 30 days in jail for violating an order of protection contravened County Court's Sandoval compromise. Although defendant timely objected to People's inquiry such that no response was provided thereto, defendant did not request nor did County Court sua sponte provide a curative instruction to the jury with regard to the improper question (compare People v. Peterson, 118 A.D.3d 1151, 1155, 988 N.Y.S.2d 271 [2014], lvs denied 24 N.Y.3d 1087, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014] ). Notwithstanding, the People's Sandoval violation was not so egregious or unduly prejudicial as to create a significant probability that defendant would have been acquitted but for such an error (see People v. Sparks, 29 N.Y.3d 932, 935, 51 N.Y.S.3d 14, 73 N.E.3d 354 [2017] ; People v. Williams, 156 A.D.3d 1224, 1230, 69 N.Y.S.3d 367 [2017] ) and, given the strong evidence of defendant's guilt, we find that, under the circumstances, said error was harmless and did not serve to deprive defendant of a fair trial (see People v. Coager, 266 A.D.2d 645, 646–647, 698 N.Y.S.2d 349 [1999], lv denied 94 N.Y.2d 917, 708 N.Y.S.2d 357, 729 N.E.2d 1156 [2000] ).
Next, defendant failed to preserve for our review his claim of prosecutorial misconduct with respect to certain allegedly improper comments or remarks made by the prosecutor during summation (see CPL 470.05[2] ; People v. Scippio, 144 A.D.3d 1184, 1187–1188, 41 N.Y.S.3d 563 [2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ). Defendant's arguments with regard to certain allegedly improper objections rendered by the People during defendant's cross-examination of the victim's stepmother and father have been considered, but we find that such questioning was not unduly prejudicial, and County Court instructed the jury that the People were permitted to meet with witnesses in preparation of trial (see People v. Milford, 118 A.D.3d 1166, 1171, 987 N.Y.S.2d 696 [2014], lv denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014] ).
Lastly, we find defendant's contention that his sentence was harsh and excessive to be without merit. While the sentence imposed was greater than that offered to defendant during plea negotiations, there is nothing in the record establishing that he was punished for asserting his right to trial or that the lengthier sentence ultimately imposed was the result of vindictiveness or retaliation (see People v. Olson, 110 A.D.3d 1373, 1377–1378, 974 N.Y.S.2d 608 [2013], lv denied 23 N.Y.3d 1023, 992 N.Y.S.2d 806, 16 N.E.3d 1286 [2014] ). Moreover, given the victim's age, defendant's exploitation of her trust, the seriousness of the offense, his criminal history and lack of remorse for his conduct, we find no extraordinary circumstances nor any abuse of discretion that would warrant modifying the sentence imposed (see People v. Gooley, 156 A.D.3d 1231, 1234, 69 N.Y.S.3d 127 [2017] ; People v. Agan, 301 A.D.2d 968, 968, 753 N.Y.S.2d 404 [2003] ).
ORDERED that the judgment is affirmed.
Clark, Mulvey, Aarons and Rumsey, JJ., concur.