Opinion
665 KA 18-00858
07-17-2020
The PEOPLE of the State of New York, Respondent, v. David K. ATKINSON, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of criminal sexual act in the first degree ( Penal Law § 130.50 [1] ), defendant contends that he was deprived of a fair trial by prosecutorial misconduct. According to defendant, the prosecutor improperly shifted the burden of proof to the defense during summation, vouched for or bolstered the testimony of prosecution witnesses, and used inflammatory statements when asking questions and during summation. Defendant objected to only one instance of alleged misconduct, thus failing to preserve his contentions with respect to the remaining instances (see People v. Manigault , 145 A.D.3d 1428, 1430, 44 N.Y.S.3d 620 [4th Dept. 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; People v. Simmons , 133 A.D.3d 1275, 1277, 20 N.Y.S.3d 787 [4th Dept. 2015], lv denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016] ; People v. Meagher , 4 A.D.3d 828, 829, 771 N.Y.S.2d 777 [4th Dept. 2004], lv denied 3 N.Y.3d 644, 782 N.Y.S.2d 415, 816 N.E.2d 205 [2004] ).
In any event, many of defendant's contentions lack merit. Although we agree with defendant that the prosecutor should not have said during summation that defendant had to "explain" a certain fact in the case or to "convince" the jury of his defense (see e.g. People v. Rupnarine , 140 A.D.3d 1204, 1205, 33 N.Y.S.3d 494 [3d Dept. 2016] ; People v. Mitchell , 129 A.D.3d 1319, 1321, 11 N.Y.S.3d 731 [3d Dept. 2015], lv denied 26 N.Y.3d 1041, 22 N.Y.S.3d 171, 43 N.E.3d 381 [2015] ), we conclude that those isolated improprieties were not so egregious as to deprive defendant of a fair trial, especially considering that the prosecutor and County Court repeatedly made clear to the jury that the burden of proof rested with the People and never shifted to the defense (see Mitchell , 129 A.D.3d at 1321, 11 N.Y.S.3d 731 ; People v. Matthews , 27 A.D.3d 1115, 1116, 811 N.Y.S.2d 514 [4th Dept. 2006] ; see also People v. Benton , 106 A.D.3d 1451, 1452, 964 N.Y.S.2d 386 [4th Dept. 2013], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 [2013] ). "[T]he jury is presumed to have followed the court's instruction" ( People v. Spencer , 108 A.D.3d 1081, 1081, 968 N.Y.S.2d 792 [4th Dept. 2013], lv denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014] ).
Defendant also failed to preserve for our review his contention that the court abused its discretion in allowing the victim to testify in rebuttal with respect to collateral matters (see People v. Humphrey , 109 A.D.3d 1173, 1174, 971 N.Y.S.2d 631 [4th Dept. 2013], lv denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ; People v. Comerford , 70 A.D.3d 1305, 1305-1306, 895 N.Y.S.2d 621 [4th Dept. 2010] ) and, given the innocuous nature of the victim's rebuttal testimony, we decline to exercise our power to review the contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ; Humphrey , 109 A.D.3d at 1174, 971 N.Y.S.2d 631 ).
Viewing the evidence in light of the elements of the crime 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 People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Although defense counsel highlighted various inconsistencies in the victim's testimony, "the jury's resolution of credibility issues with respect to the victim's testimony is entitled to great deference" ( People v. McFarley , 77 A.D.3d 1282, 1282, 907 N.Y.S.2d 901 [4th Dept. 2010], lv denied 15 N.Y.3d 954, 917 N.Y.S.2d 114, 942 N.E.2d 325 [2010] ; see People v. Farrington , 171 A.D.3d 1538, 1541-1542, 99 N.Y.S.3d 555 [4th Dept. 2019], lv denied 34 N.Y.3d 930, 109 N.Y.S.3d 750, 133 N.E.3d 456 [2019] ). We also note that the victim's testimony was amply corroborated by other evidence.
Finally, we conclude that the sentence is not unduly harsh or severe.