Opinion
01-02-2015
The PEOPLE of the State of New York, Respondent, v. John M. BLACK, Defendant–Appellant.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, and DeJOSEPH, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of predatory sexual assault against a child ( Penal Law § 130.96 ). Defendant contends that the verdict is against the weight of the evidence because neither the victim's testimony nor defendant's admissions to the police were credible. We reject that contention. Even assuming, arguendo, that a different verdict would not have been unreasonable, we note that "the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded" ( People v. Orta, 12 A.D.3d 1147, 1147, 784 N.Y.S.2d 812, lv. denied 4 N.Y.3d 801, 795 N.Y.S.2d 176, 828 N.E.2d 92 ; see People v. McCray, 121 A.D.3d 1549, 1552, 993 N.Y.S.2d 413 ). 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 ), we conclude that the verdict is not 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 ).
Defendant further contends that Supreme Court erred in admitting in evidence the victim's sexual assault examination report because defendant was unable to confront the nurse examiner who prepared the report. That contention is unpreserved for our review, however, inasmuch as defendant failed to object to the report at trial (see CPL 470.05[2] ; People v. Snyder, 100 A.D.3d 1367, 1369, 953 N.Y.S.2d 430, lv. denied 21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1285 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6 ][a] ). Contrary to the further contention of defendant, we conclude that defense counsel was not ineffective in failing to object to the report because, under the circumstances of this case, the decision not to object was consistent with a legitimate trial strategy (see generally People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
We agree with defendant that certain comments made by the prosecutor during summation were improper, including an impermissible "safe streets" argument (see People v. Scott, 60 A.D.3d 1483, 1484, 875 N.Y.S.2d 728, lv. denied 12 N.Y.3d 859, 881 N.Y.S.2d 671, 909 N.E.2d 594 ; People v. Nevedo, 202 A.D.2d 183, 185, 608 N.Y.S.2d 422 ; People v. Hanright, 187 A.D.2d 1021, 1021, 590 N.Y.S.2d 347, lv. denied 81 N.Y.2d 840, 595 N.Y.S.2d 739, 611 N.E.2d 778 ). We conclude, however, that the prosecutor's comments "were not so pervasive or egregious as to deprive defendant of a fair trial" ( People v. Jones, 114 A.D.3d 1239, 1241, 980 N.Y.S.2d 670, lv. denied 23 N.Y.3d 1038, 993 N.Y.S.2d 252, 17 N.E.3d 507 [internal quotation marks omitted]; see Hanright, 187 A.D.2d at 1021, 590 N.Y.S.2d 347 ). Thus, contrary to the further contention of defendant, the "failure to object to those comments does not constitute ineffective assistance of counsel" ( People v. Nicholson, 118 A.D.3d 1423, 1425, 988 N.Y.S.2d 765 ).
Finally, defendant contends that the People's expert was improperly allowed to testify that the victim made a credible complaint of sexual abuse. We reject that contention, inasmuch as the testimony of the expert, who had never met defendant or the victim, was "general in nature and d[id] not attempt to impermissibly prove that the charged crimes occurred" ( People v. Gayden, 107 A.D.3d 1428, 1428, 967 N.Y.S.2d 277, lv. denied 22 N.Y.3d 1138, 983 N.Y.S.2d 497, 6 N.E.3d 616 [internal quotation marks omitted]; see People v. Williams, 20 N.Y.3d 579, 584, 964 N.Y.S.2d 483, 987 N.E.2d 260 ; People v. Olson, 110 A.D.3d 1373, 1376, 974 N.Y.S.2d 608, lv. denied 23 N.Y.3d 1023, 992 N.Y.S.2d 806, 16 N.E.3d 1286 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.