PEOPLE v. FOLTIN (2024)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of one count each of predatory sexual assault against a child (Penal Law former § 130.96) and endangering the welfare of a child (§ 260.10 [1]), and two counts of rape in the second degree (former § 130.30 [1]). We affirm.

Defendant contends that the verdict is against the weight of the evidence because the People failed to prove that he engaged in the acts constituting one of the counts of rape in the second degree on a certain date. Defendant's contention is, in actuality, a challenge to the legal sufficiency of his conviction on that count and is unpreserved because defendant failed to move for a trial order of dismissal on that basis (see People v. Cooley, 220 A.D.3d 1189, 1189, 197 N.Y.S.3d 790 [4th Dept. 2023], lv denied 41 N.Y.3d 964, 208 N.Y.S.3d 540, 232 N.E.3d 218 [2024]).

In any event, “we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's [additional] challenge regarding the weight of the evidence” with respect to all of the counts of which he was convicted (People v. Stephenson, 104 A.D.3d 1277, 1278, 960 N.Y.S.2d 823 [4th Dept. 2013], lv denied 21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398 [2013], reconsideration denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014] [internal quotation marks omitted]). Here, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

We also reject defendant's contention that County Court erred in allowing an officer to improperly bolster the victim's testimony. The court properly permitted the officer to describe the phases of the forensic interview (see People v. Kozlowski, 11 N.Y.3d 223, 238, 869 N.Y.S.2d 848, 898 N.E.2d 891 [2008], rearg denied 11 N.Y.3d 904, 873 N.Y.S.2d 265, 901 N.E.2d 759 [2009], cert denied 556 U.S. 1282, 129 S.Ct. 2775, 174 L.Ed.2d 272 [2009]), and when doing so, the officer spoke only in general terms and did not mention the victim. “[I]nasmuch as the officer's testimony did not contain any statement of the victim, it could not be considered bolstering” (People v. Englert, 130 A.D.3d 1532, 1533, 14 N.Y.S.3d 848 [4th Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015], lv denied 26 N.Y.3d 1144, 32 N.Y.S.3d 58, 51 N.E.3d 569 [2016]). The court also properly permitted testimony regarding the victim's demeanor during her initial interview with police. Evidence of a victim's demeanor when reporting sexual abuse is admissible “to explain how the victim eventually disclosed the abuse and how the investigation started” (People v. Ludwig, 104 A.D.3d 1162, 1163, 961 N.Y.S.2d 657 [4th Dept. 2013], affd 24 N.Y.3d 221, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014]). Defendant's further contention that the court erred in permitting the officer to testify that a safety plan was implemented following the victim's forensic interview “is not preserved for our review because defendant objected to the testimony of that officer at trial on a ground different from that now asserted on appeal” (People v. Smith, 24 A.D.3d 1253, 1253, 806 N.Y.S.2d 825 [4th Dept. 2005], lv denied 6 N.Y.3d 818, 812 N.Y.S.2d 458, 845 N.E.2d 1289 [2006]).

Finally, we reject defendant's contention that his sentence is unduly harsh and severe.