PEOPLE v. DAVIS (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree (Penal Law § 130.35 [1] ).   We agree with defendant that Supreme Court erred in permitting the prosecutor to elicit the testimony of a police detective on redirect examination concerning pretrial statements made by the victim that bolstered her trial testimony.   We nevertheless conclude that reversal is not required based on that error.  “Although the prosecutor's redirect examination was far too extensive to be justified under the opening the door theory ․, the erroneous admission of the testimony is harmless” (People v. Echols, 209 A.D.2d 1000, 1000, 619 N.Y.S.2d 1021, lv. denied 85 N.Y.2d 972, 629 N.Y.S.2d 732, 653 N.E.2d 628, 86 N.Y.2d 734, 631 N.Y.S.2d 615, 655 N.E.2d 712 [internal quotation marks omitted] ).   The evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   We reject defendant's contention that the court abused its discretion in admitting certain photographs in evidence.   The photographs depicting injuries sustained by the victim were relevant, and “to arouse the emotions of the jury and to prejudice the defendant” was not their sole purpose (People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).   Contrary to defendant's further contentions, the photographs of the crime scene were properly authenticated by the victim (see People v. Lee, 301 A.D.2d 671, 753 N.Y.S.2d 874), and the court did not abuse its discretion in denying defendant's motions for a mistrial (see generally People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794).

 We reject the contention of defendant that defense counsel was ineffective in failing to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as defendant failed to demonstrate that such a challenge would be meritorious (see People v. Bassett, 55 A.D.3d 1434, 1438, 866 N.Y.S.2d 473, lv. denied 11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441).   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), 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).   Finally, we reject the contention of defendant that Penal Law § 70.08, the persistent violent felony offender statute pursuant to which he was sentenced, is unconstitutional (see People v. Crowder, 47 A.D.3d 724, 848 N.Y.S.2d 886, lv. denied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85).

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

MEMORANDUM: