Opinion
2014-07-30
The PEOPLE, etc., respondent, v. Michael E. THOMPSON, Jr., appellant.
Randall Richards, Bronxville, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Randall Richards, Bronxville, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered April 25, 2012, convicting him of rape in the first degree, assault in the second degree (three counts), menacing in the second degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged with rape in the first and third degrees, and menacing in the second degree with respect to a woman. In the same indictment, the defendant was charged with three counts of assault in the second degree and one count of endangering the welfare of a child as to the woman's six-year-old son. The trial court denied the defendant's motion to sever the charges with respect to the child from those relating to the mother.
Contrary to the defendant's contention, the charges were properly joined on the ground that proof of each offense was material and admissible as evidence in chief of the other offenses ( see CPL 200.20[2][b]; see also People v. Munger, 24 N.Y.2d 445, 448–449, 301 N.Y.S.2d 39, 248 N.E.2d 882;People v. Conroy, 102 A.D.3d 979, 980, 958 N.Y.S.2d 224;People v. Griffin, 132 A.D.2d 569, 569–570, 517 N.Y.S.2d 296).
In addition, the trial court did not improvidently exercise its discretion in admitting expert testimony regarding battered women's syndrome ( see People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084;People v. Roblee, 83 A.D.3d 1126, 1128, 920 N.Y.S.2d 467;People v. Smith, 9 A.D.3d 745, 747, 779 N.Y.S.2d 853;see also People v. Gillard, 7 A.D.3d 540, 776 N.Y.S.2d 95). The court did not allow the expert to offer an opinion as to whether the conduct at issue constituted domestic violence, or to testify regarding any prior bad acts by the defendant. Instead, the expert described the general behavior patterns of domestic violence perpetrators and victims in order to explain behaviors of a battered woman that might be beyond the ken of the average juror ( see People v. Roblee, 83 A.D.3d at 1128, 920 N.Y.S.2d 467;People v. Carroll, 95 N.Y.2d at 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084).
Likewise, the trial court did not improvidently exercise its discretion in admitting testimony from two of the complainant's coworkers as to bruising that they had observed on the complainant's face. This testimony was relevant to the charged offense of menacing in the second degree ( see Penal Law § 120.14 [2]; Matter of Luis A., 223 A.D.2d 505, 506, 637 N.Y.S.2d 374).
The defendant's objection to the trial court's taking of the sworn testimony of the child, who was seven years old at the time, is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Batista, 92 A.D.3d 793, 938 N.Y.S.2d 479;People v. Gillard, 7 A.D.3d 540, 541, 776 N.Y.S.2d 95;People v. Rouff, 163 A.D.2d 338, 339, 557 N.Y.S.2d 170). In any event, the child's sworn testimony was properly admitted after a sufficient inquiry by the court in which the child established that he understood the nature of an oath and the difference between the truth and a lie, and he promised to tell the truth to the court ( see CPL 60.20[2]; People v. Morales, 80 N.Y.2d 450, 452–453, 591 N.Y.S.2d 825, 606 N.E.2d 953;People v. Nisoff, 36 N.Y.2d 560, 566, 369 N.Y.S.2d 686, 330 N.E.2d 638;People v. Brown, 89 A.D.3d 1473, 1474, 932 N.Y.S.2d 653).
The defendant also contends that the verdict of guilt as to rape in the first degree (Penal Law § 130.35[1] ) was against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt as to that charge was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant's contention that the verdict was repugnant because the jury convicted him of rape in the first degree concerning events which occurred on November 6, 2010, but acquitted him of rape in the third degree based on the same events, is unpreserved for appellate review because he failed to make this argument before the jury was discharged ( seeCPL 470.05[2]; People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271;People v. Stahl, 53 N.Y.2d 1048, 1050, 442 N.Y.S.2d 488, 425 N.E.2d 876;People v. Hall, 56 A.D.3d 798, 798, 868 N.Y.S.2d 708). In any event, the contention is without merit ( see People v. Evans, 79 A.D.3d 454, 455, 913 N.Y.S.2d 41;see generally People v. Tucker, 55 N.Y.2d 1, 8, 447 N.Y.S.2d 132, 431 N.E.2d 617).
The sentence imposed was not excessive ( see People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675;People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228;People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675).
The defendant failed to preserve for appellate review his contention that the sentence the Supreme Court imposed improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing ( see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017; People v. Romero, 101 A.D.3d 906, 907, 955 N.Y.S.2d 214). In any event, this contention is without merit ( see People v. Romero, 101 A.D.3d at 907, 955 N.Y.S.2d 214). CHAMBERS, J.P., AUSTIN, HINDS–RADIX and DUFFY, JJ., concur.