Opinion
2013-10-4
The PEOPLE of the State of New York, Respondent, v. William CULLEN, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of two counts of rape in the second degree (Penal Law § 130.30[1] ), one count of criminal sexual act in the second degree (§ 130.45[1] ) and three counts of incest in the second degree (§ 255.26). Contrary to defendant's contention, we conclude that, 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), 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's challenge to the weight of the evidence is based largely upon the alleged incredibility of the victim, and we conclude that there is no basis in the record for us to disturb the jury's credibility determinations ( see People v. Johnson, 94 A.D.3d 1563, 1564, 942 N.Y.S.2d 753,lv. denied19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212;People v. Ellison, 302 A.D.2d 955, 955, 753 N.Y.S.2d 922,lv. denied99 N.Y.2d 654, 760 N.Y.S.2d 118, 790 N.E.2d 292). Indeed, the letters written by defendant to the victim provide “compelling corroboration of the victim's testimony as to the nature of their relationship” ( People v. Hopkins, 56 A.D.3d 820, 823, 866 N.Y.S.2d 819).
Defendant further contends that Supreme Court erred in permitting the prosecutor to improperly bolster the victim's testimony by eliciting testimony from two witnesses concerning the victim's prior consistent statements. We conclude that the testimony of the witnesses at issue did not constitute improper bolstering inasmuch as it was not admitted for its truth ( see People v. Ludwig, 104 A.D.3d 1162, 1163, 961 N.Y.S.2d 657). Defendant failed to preserve for our review his contention that certain remarks made by the prosecutor during opening statements and on summation constituted prosecutorial misconduct that deprived him of a fair trial inasmuch as he failed to object to those remarks ( see People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356,lv. denied8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800). In any event, reversal is not required based upon the alleged misconduct ( see People v. Sweeney, 15 A.D.3d 917, 917, 788 N.Y.S.2d 775,lv. denied4 N.Y.3d 891, 798 N.Y.S.2d 736, 831 N.E.2d 981;see generally People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885).
Defendant also contends that the court erred in allowing the People to present evidence of various uncharged acts of sexual misconduct and violence committed against the victim. Defendant failed to preserve for our review his contention with respect to many of the instances of alleged error ( see People v. Hunt, 74 A.D.3d 1741, 1742, 902 N.Y.S.2d 465,lv. denied,15 N.Y.3d 806, 908 N.Y.S.2d 165, 934 N.E.2d 899;People v. Williams, 26 A.D.3d 772, 773, 809 N.Y.S.2d 720,lv. denied6 N.Y.3d 840, 814 N.Y.S.2d 88, 847 N.E.2d 385), and we decline to exercise our power to review his contention regarding those alleged errors as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). We reject defendant's contention with respect to the remaining alleged errors, and we conclude that the challenged evidence was properly admitted because it placed the “ ‘charged conduct in context’ ” and “ ‘provided necessary background information on the nature of the relationship’ between defendant and the victim” ( People v. Leeson, 12 N.Y.3d 823, 827, 880 N.Y.S.2d 895, 908 N.E.2d 885, quoting People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263;see People v. Shofkom, 63 A.D.3d 1286, 1287, 880 N.Y.S.2d 758,lv. denied13 N.Y.3d 799, 887 N.Y.S.2d 549, 916 N.E.2d 444,appeal dismissed13 N.Y.3d 933, 895 N.Y.S.2d 310, 922 N.E.2d 898).
Defendant contends that the court erred in admitting letters he wrote to the victim because their prejudicial effect outweighed their probative value. Defendant failed to preserve his present contention for our review because it differs from that raised before the trial court ( see People v. Marra, 96 A.D.3d 1623, 1625, 946 N.Y.S.2d 783,affd.21 N.Y.3d 979, 971 N.Y.S.2d 491, 994 N.E.2d 387), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( seeCPL 470.15[6] [a] ). Defendant also failed to preserve for our review his contention that the court erred in constructively amending the indictment ( see generally People v. Little, 23 A.D.3d 1117, 1118, 807 N.Y.S.2d 756,lv. denied6 N.Y.3d 777, 811 N.Y.S.2d 344, 844 N.E.2d 799). In any event, defendant's contention lacks merit inasmuch as defendant conceded that he was not prejudiced by the constructive amendment, and the amendment did not change the theory of the prosecution ( see People v. Williams, 24 A.D.3d 882, 883–884, 806 N.Y.S.2d 266,lv. denied6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983).
Contrary to defendant's further contention, his sentence is not unduly harsh or severe. Finally, we have reviewed defendant's remaining contention concerning the alleged ineffective assistance of counsel and conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.