PEOPLE v. McCOVERY (1998)

Defendant appeals from a judgment convicting him of rape in the first degree (Penal Law § 130.35[1] ), sexual abuse in the first degree (Penal Law § 130.65[1] ) and assault in the second degree (Penal Law § 120.05[6] ).

 Defendant contends that he was denied a fair trial by prosecutorial misconduct.   Defendant's only objections to the prosecutor's improper questions were sustained, however, and defendant did not request a further curative instruction or move for a mistrial.  “Thus, the court ‘must be deemed to have corrected the error to the defendant's satisfaction’ ” (People v. Balkum, 233 A.D.2d 929, 649 N.Y.S.2d 874, lv. denied 89 N.Y.2d 939, 655 N.Y.S.2d 890, 678 N.E.2d 503, quoting People v. Williams, 46 N.Y.2d 1070, 1071, 416 N.Y.S.2d 792, 390 N.E.2d 299).   Defendant failed to preserve for our review the other alleged misconduct of the prosecutor (see, CPL 470.05[2];  People v. Albert, 222 A.D.2d 1005, 635 N.Y.S.2d 900, lv. denied 88 N.Y.2d 844, 979, 644 N.Y.S.2d 690, 649 N.Y.S.2d 386, 667 N.E.2d 340, 672 N.E.2d 612).   Even were we to reach that issue as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ), we would conclude that defendant's contention lacks merit.   The alleged misconduct of the prosecutor did not cause such substantial prejudice to defendant that he was denied due process (see, People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114).

 Defendant was not denied effective assistance of counsel (see, People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).   “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 We reject defendant's contention that the verdict is contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “[C]redibility is a matter to be determined by the trier of the facts (see, People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264) and the jury was in the best position to resolve the conflict in the testimony” (People v. Conner, 195 A.D.2d 1078, 600 N.Y.S.2d 541, lv. denied 82 N.Y.2d 715, 602 N.Y.S.2d 813, 622 N.E.2d 314;  see, People v. Gaskin, 186 A.D.2d 995, 590 N.Y.S.2d 809).

Finally, we conclude that the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: