PEOPLE v. RUSSELL (2008)

 Defendant appeals from a judgment convicting him, upon a jury trial, of sexual abuse in the first degree (Penal Law § 130.65[3] ) and endangering the welfare of a child (§ 260.10 [1] ).   We reject defendant's contention that County Court abused its discretion in failing, sua sponte, to order a CPL article 730 examination.   There is no indication in the record that defendant could not understand the proceedings or assist in his own defense (see People v. Taylor, 13 A.D.3d 1168, 787 N.Y.S.2d 539, lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684;  People v. Graham, 272 A.D.2d 479, 708 N.Y.S.2d 336, lv. denied 95 N.Y.2d 865, 715 N.Y.S.2d 220, 738 N.E.2d 368;  see generally People v. Tortorici, 92 N.Y.2d 757, 765-766, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80).   By failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the court's Sandoval ruling constitutes an abuse of discretion (see People v. Jackson, 46 A.D.3d 1408, 847 N.Y.S.2d 800;  People v. Kairis, 37 A.D.3d 1070, 1070-1071, 829 N.Y.S.2d 344, lv. denied 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant also failed to preserve for our review his contention that the evidence is legally insufficient to establish that he had sexual contact with the victim, to support the conviction of either crime (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, his contention is without merit.   The sworn testimony of the victim that defendant touched her breast until she told him to stop doing so is legally sufficient to support the conviction of each crime (see People v. Stickles, 267 A.D.2d 604, 605, 700 N.Y.S.2d 248, lv. dismissed 95 N.Y.2d 839, 713 N.Y.S.2d 146, 735 N.E.2d 426;  People v. Danza, 127 A.D.2d 781, 512 N.Y.S.2d 175, lv. denied 69 N.Y.2d 879, 515 N.Y.S.2d 1026, 507 N.E.2d 1096).   Also contrary to defendant's contention, 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).   Although the testimony of the victim was uncorroborated, the jury nevertheless was entitled to credit that testimony over that of defendant (see generally id.).

Defendant failed to preserve for our review his further contention that he was deprived of a fair trial by prosecutorial misconduct during the direct testimony of the victim and on summation (see People v. Williams, 43 A.D.3d 1336, 1337, 845 N.Y.S.2d 768;  People v. Gates, 6 A.D.3d 1062, 1063, 775 N.Y.S.2d 621, lv. denied 3 N.Y.3d 659, 782 N.Y.S.2d 701, 816 N.E.2d 574).   “In any event, ‘[w]e do not believe that the cumulative effect of the asserted instances of misconduct on the part of the prosecutor prejudiced the verdict and deprived defendant of a fair trial’ and thus reversal is not required” (Gates, 6 A.D.3d at 1063, 775 N.Y.S.2d 621;  see People v. Cohen, 302 A.D.2d 904, 905, 753 N.Y.S.2d 796).   Based on the record before us, we conclude that defendant was not denied effective assistance of counsel (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 preserve for our review his contention that he was penalized at sentencing for asserting his right to a trial (see People v. Hurley, 75 N.Y.2d 887, 554 N.Y.S.2d 469, 553 N.E.2d 1017;  People v. Irrizarry, 37 A.D.3d 1082, 1083, 829 N.Y.S.2d 351, lv. denied 8 N.Y.3d 946, 836 N.Y.S.2d 557, 868 N.E.2d 240) and, in any event, that contention is without merit (see Irrizarry, 37 A.D.3d at 1083, 829 N.Y.S.2d 351;  People v. Smith, 21 A.D.3d 1277, 1278, 801 N.Y.S.2d 663, lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: