THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. AARON RICHARD FISHER DEFENDANT APPELLANT (2010)

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, inter alia, course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ) and course of sexual conduct against a child in the second degree (§ 130.80[1][a] ).   Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct during summation (see People v. Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849) and, in any event, that contention is without merit.   “[T]he prosecutor's closing statement must be evaluated in light of the defense summation, which put into issue the complainants' character and credibility and justified the People's response” (People v. Halm, 81 N.Y.2d 819, 821).   The majority of the prosecutor's comments on summation were within “ ‘the broad bounds of rhetorical comment permissible in closing argument’ “ (People v. Williams, 28 AD3d 1059, 1061, affd 8 NY3d 854, quoting People v. Galloway, 54 N.Y.2d 396, 399), and they were a fair response to defense counsel's summation (see People v. Figgins, 72 AD3d 1599;  People v. Diggs, 24 AD3d 1261, lv denied 6 NY3d 812;  People v. Melendez, 11 AD3d 983, lv denied 4 NY3d 888).   Even assuming, arguendo, that some of the prosecutor's comments were beyond those bounds, we conclude that they were not so egregious as to deprive defendant of a fair trial (see Figgins, 72 AD3d 1599;  People v. Sweney, 55 AD3d 1350, 1351, lv denied 11 NY3d 901;  People v. Crawford, 299 A.D.2d 848, lv denied 99 N.Y.2d 581, 653).   Defendant also failed to preserve for our review his contention that the prosecutor improperly asked him on cross-examination whether prosecution witnesses were lying (cf.  People v. Paul, 212 A.D.2d 1020, 1021, lv denied 85 N.Y.2d 912;  People v. Jarrells, 190 A.D.2d 120, 125-126).   In any event, we conclude that defendant was not thereby denied a fair trial (see People v. Gonzalez, 206 A.D.2d 946, lv denied 84 N.Y.2d 867).

Defendant further contends that the evidence is legally insufficient to support the conviction of course of sexual conduct against a child in the second degree inasmuch as the People failed to establish that the alleged sexual acts occurred “over a period of time not less than three months in duration” pursuant to Penal Law § 130.80(1).   Defendant failed to preserve that contention for our review (see People v. Gray, 86 N.Y.2d 10, 19;  People v. Mills, 63 AD3d 1717, lv denied 13 NY3d 861) and, in any event, that contention is without merit.   Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621), we conclude that there is a valid line of reasoning and permissible inferences from which a rational jury could conclude that the sexual conduct occurred for the requisite duration (see People v. Paramore, 288 A.D.2d 53, lv denied 97 N.Y.2d 759;  see also People v. Johnson, 24 AD3d 967, 968, lv denied 6 NY3d 814;  see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Defendant also failed to preserve for our review his contention that the evidence is legally insufficient to support the remaining counts (see Gray, 86 N.Y.2d at 19) and, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).

We reject the further contention of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147).   “With respect to defense counsel's failure to object to certain ․ testimony ․ [and alleged prosecutorial misconduct on summation], defendant failed to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's alleged shortcomings” (People v. Elliott, 73 AD3d 1444, 1445, lv denied 15 NY3d 773 [internal quotation marks omitted];  see People v. Taylor, 1 NY3d 174, 176-178).   Further, “[d]efense counsel's failure to make a motion for a trial order of dismissal on the ground raised on appeal does not constitute ineffective assistance of counsel because that motion would have had no chance of success” (People v. Hunter, 70 AD3d 1388, 1389, lv. denied 15 NY3d 751;  see generally People v. Stultz, 2 NY3d 277, 287, rearg. denied 3 NY3d 702).   Defendant's contention that defense counsel was ineffective in failing to present a proper foundation to permit the introduction of certain evidence involves matters outside the record on appeal and thus is properly raised by way of a motion pursuant to CPL article 440 (see People v. Barnes, 56 AD3d 1171;  People v. Jenkins, 25 AD3d 444, 445-446, lv. denied 6 NY3d 834).

Patricia L. Morgan

Clerk of the Court