PEOPLE v. KING (2008)

 On appeal from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree (Penal Law § 130.35[1] ), defendant contends in his main brief and pro se supplemental brief that the verdict is against the weight of the evidence because the testimony of the victim was incredible as a matter of law.   We reject that contention (see People v. Ptak, 37 A.D.3d 1081, 828 N.Y.S.2d 825, lv. denied 8 N.Y.3d 949, 836 N.Y.S.2d 559, 868 N.E.2d 242;  see generally People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant further contends in his main brief that he was denied effective assistance of counsel.   To the extent that defendant's contention involves matters outside the record on appeal, it is properly raised by way of a motion pursuant to CPL 440.10 (see People v. McKnight, 55 A.D.3d 1315, 864 N.Y.S.2d 224).   We otherwise conclude on the record before us 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). Defendant failed to meet his burden of establishing the absence of strategic or other legitimate explanations for the alleged deficiencies of his attorneys in representing him (see People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Flores, 84 N.Y.2d 184, 186-187, 615 N.Y.S.2d 662, 639 N.E.2d 19;  see generally Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Also contrary to the contention of defendant in his main brief, we conclude that County Court properly admitted evidence of his controlling behavior toward the victim.   Evidence of that behavior is “admissible for the purpose of establishing the element of forcible compulsion and the victim's delayed reporting” (People v. Bennett, 52 A.D.3d 1185, 1187, 859 N.Y.S.2d 836, lv. denied 11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657;  see People v. Greene, 306 A.D.2d 639, 642, 760 N.Y.S.2d 769, lv. denied 100 N.Y.2d 594, 766 N.Y.S.2d 170, 798 N.E.2d 354), and the prejudicial effect of the evidence of that behavior is outweighed by its probative value (see People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59).   The sentence is not unduly harsh or severe.

 Defendant contends in his pro se supplemental brief that reversal is required based on the court's failure to provide defendant with notice of the jury notes pursuant to CPL 310.30.   We conclude that defendant failed to preserve his contention with respect to the sixth jury note because the court read the contents of that note in open court, and defendant failed to object or to suggest a response (see People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387).   We decline to exercise our power to review defendant's contention concerning the sixth jury note as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   With respect to the jury notes requesting exhibits, we conclude that the court properly forwarded the requested exhibits without notice to defendant inasmuch as the record establishes that defendant waived his right to be present for the reading of those notes (see People v. Knudsen, 34 A.D.3d 496, 497, 823 N.Y.S.2d 530;  People v. Porteous, 193 A.D.2d 631, 597 N.Y.S.2d 446, lv. denied 82 N.Y.2d 758, 603 N.Y.S.2d 1000, 624 N.E.2d 186, 82 N.Y.2d 807, 604 N.Y.S.2d 944, 624 N.E.2d 1039).   We further conclude that defendant received meaningful notice of the remainder of the substantive jury notes (see generally People v. O'Rama, 78 N.Y.2d 270, 276-278, 574 N.Y.S.2d 159, 579 N.E.2d 189).

Finally, we have considered the remaining contention of defendant in his pro se supplemental brief and conclude that it is without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: