Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Frederick SYMONDS, Jr., Defendant–Appellant.
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal sexual act in the third degree (Penal Law § 130.40 [2] ) and two counts of incest in the third degree (§ 255.25). Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct, on summation and otherwise (see People v. Mull, 89 A.D.3d 1445, 1446, 932 N.Y.S.2d 635, lv. denied 19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215 ). We conclude in any event that defendant's contention lacks merit. The complained-of remarks on summation were “not so egregious as to deprive defendant of a fair trial” (People v. Wittman, 103 A.D.3d 1206, 1207, 958 N.Y.S.2d 911, lv. denied 21 N.Y.3d 915, 966 N.Y.S.2d 366, 988 N.E.2d 895 ; see People v. Eldridge, 288 A.D.2d 845, 845–846, 732 N.Y.S.2d 607, lv. denied 97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400 ). Moreover, we conclude that the prosecutor did not improperly bolster the victim's testimony by presenting the testimony of the victim's father (see generally People v. McDaniel, 81 N.Y.2d 10, 16, 595 N.Y.S.2d 364, 611 N.E.2d 265 ), nor did the prosecutor thereby violate CPL 60.42 (see generally People v. Wigfall, 253 A.D.2d 80, 81–83, 690 N.Y.S.2d 2, lv. denied 93 N.Y.2d 981, 695 N.Y.S.2d 67, 716 N.E.2d 1112 ). We likewise reject defendant's contention that he was denied effective assistance of counsel based on defense counsel's failure to object to the alleged instances of prosecutorial misconduct during summation. Because the alleged improper remarks did not deny defendant a fair trial, he was not denied effective assistance of counsel based upon defense counsel's failure to object to those remarks (see People v. Hendrix, 132 A.D.3d 1348, 1348, 17 N.Y.S.3d 256, lv. denied 26 N.Y.3d 1145 ). With respect to the contention that defendant was denied effective assistance based on additional alleged failings of defense counsel, we conclude that defendant has failed to establish the absence of any strategic or other legitimate explanation for defense counsel's alleged failings (see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ).
Defendant further contends that the People failed to disclose Brady material in a timely manner. We agree. We conclude, however, that the Brady violation does not require reversal because the information was turned over as Rosario material prior to jury selection, thus affording defendant a “meaningful opportunity” to use the information during cross-examination (People v. Middlebrooks, 300 A.D.2d 1142, 1143, 752 N.Y.S.2d 759, lv. denied 99 N.Y.2d 630, 760 N.Y.S.2d 112, 790 N.E.2d 286 ; see People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 ; People v. Bernard, 115 A.D.3d 1214, 1215, 982 N.Y.S.2d 264, lv. denied 23 N.Y.3d 1018, 992 N.Y.S.2d 800, 16 N.E.3d 1280 ).
Defendant failed to preserve for our review his contention that the indictment was rendered duplicitous by the testimony at trial (see People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 ; People v. Armstrong, 134 A.D.3d 1401, 1402, 21 N.Y.S.3d 655, lv. denied 27 N.Y.3d 962, –––N.Y.S.3d ––––, ––– N.E.3d ––––). 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] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.