PEOPLE v. YELLE (2003)

 On appeal from a judgment convicting him, following a jury trial, of four counts of sexual abuse in the first degree (Penal Law § 130.65[3] ) and four counts of endangering the welfare of a child (§ 260.10[1] ), defendant contends that County Court's Sandoval ruling constituted an abuse of discretion.   We disagree.   The court “properly balanced the probative value of [the] evidence against its potential for prejudice” (People v. Witzigman, 295 A.D.2d 990, 990, 743 N.Y.S.2d 356, lv. denied 98 N.Y.2d 714, 749 N.Y.S.2d 12, 778 N.E.2d 563;  see People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472).   The fact that the prior convictions of defendant arose from his violations of court orders is “relevant to the issue of credibility since it demonstrated the defendant's willingness to place his interests above those of society” (People v. Kostaras, 255 A.D.2d 602, 602, 680 N.Y.S.2d 874;  see also People v. Mienko, 282 A.D.2d 283, 725 N.Y.S.2d 2, lv. denied 96 N.Y.2d 904, 730 N.Y.S.2d 802, 756 N.E.2d 90).

Defendant failed to preserve for our review his further contention that the testimony of a police investigator improperly bolstered the testimony of the two child victims (see People v. Houk, 225 A.D.2d 1085, 639 N.Y.S.2d 197, lv. denied 90 N.Y.2d 940, 664 N.Y.S.2d 758, 687 N.E.2d 655;  People v. Smith, 219 A.D.2d 794, 632 N.Y.S.2d 990, lv. denied 86 N.Y.2d 875, 635 N.Y.S.2d 956, 659 N.E.2d 779).   In any event, we conclude that defense counsel opened the door to that allegedly improper testimony (see People v. Melendez, 55 N.Y.2d 445, 451-452, 449 N.Y.S.2d 946, 434 N.E.2d 1324;  see also People v. Lamphier, 302 A.D.2d 864, 754 N.Y.S.2d 482).

 Defendant was not denied a fair trial by prosecutorial misconduct or cumulative errors.   Contrary to defendant's contentions, the prosecutor adhered to the court's Ventimiglia ruling (see People v. Alvarez, 98 A.D.2d 777, 469 N.Y.S.2d 491;  cf.  People v. Saracina, 298 A.D.2d 953, 954, 748 N.Y.S.2d 109, lv. denied 99 N.Y.2d 564, 754 N.Y.S.2d 216, 784 N.E.2d 89), and the delayed disclosure of Brady material did not prejudice the defense inasmuch as defendant was “ ‘given a meaningful opportunity to use the * * * exculpatory material to cross-examine the People's witnesses or as evidence during his case’ ” (People v. Bonilla, 298 A.D.2d 871, 871, 747 N.Y.S.2d 830, lv. denied 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80, quoting People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349;  see People v. Bennett, 273 A.D.2d 914, 709 N.Y.S.2d 773, lv. denied 95 N.Y.2d 932, 721 N.Y.S.2d 608, 744 N.E.2d 144).   Contrary to the further contention of defendant, he was not denied effective assistance of counsel.   Although defense counsel's cross-examination of the People's witnesses elicited damaging testimony, there was a discernible strategy in the questions posed by defense counsel.  “[A] reviewing court must avoid confusing ‘true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis' ” (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see People v. Standard, 273 A.D.2d 870, 870, 709 N.Y.S.2d 294, lv. denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154).   We conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 The verdict, based on credibility determinations of the jury, is not against the weight of the evidence.   The testimony of the child victims was not “incredible as a matter of law” (People v. Hogan, 292 A.D.2d 834, 835, 739 N.Y.S.2d 311, lv. denied 98 N.Y.2d 676, 746 N.Y.S.2d 465, 774 N.E.2d 230;  see People v. Clark, 292 A.D.2d 816, 739 N.Y.S.2d 313, lv. denied 98 N.Y.2d 650, 745 N.Y.S.2d 508, 772 N.E.2d 611), and it cannot be said that the jury failed to give their testimony the weight it should be accorded (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The sentence is neither unduly harsh nor severe.

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

MEMORANDUM: