PEOPLE v. KRULL (2023)

Judgment, Supreme Court, Bronx County (Lester B. Adler, J.), rendered March 13, 2017, convicting defendant, after a jury trial, of two counts of rape in the second degree, two counts of criminal sexual act in the second degree, three counts of sexual abuse in the second degree, and one count of endangering the welfare of a child, and sentencing him to an aggregate term of three years followed by five years of post release supervision, unanimously affirmed.

The verdict was not against 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 [2007]).  We find no basis to disturb the jury's credibility determinations.  Contrary to defendant's assertion, the jury's mixed verdict here does not provide a basis to find the complainant incredible (see People v. Rayam, 94 N.Y.2d 557, 563, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000]).

Defendant's challenge to the People's cross-examination of him is unpreserved and we decline to review it in the interest of justice.  As an alternative holding, we find that the contested portion of the cross-examination was permissible to refute defendant's testimony and counter his defense that the complainant and her mother had motives to lie (see People v. Nurse, 176 A.D.2d 197, 198, 574 N.Y.S.2d 319 [1st Dept. 1991], lv denied 79 N.Y.2d 830, 580 N.Y.S.2d 210, 588 N.E.2d 108 [1991]).  Moreover, the text messages the prosecutor confronted defendant with had been admitted into evidence without objection by defendant and, therefore, were already before the jury.

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice.  As an alternative holding, we find that the challenged remarks generally constituted fair comment on the evidence and appropriate responses to defense arguments, and that the summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).