THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JEREMY NEWTON DEFENDANT APPELLANT (2017)

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, rape in the first degree (Penal Law § 130.35[1] ) and criminal sexual act in the first degree

(§ 130.50[1] ). 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 People v. Bleakley, 69 N.Y.2d 490, 495).  Defendant failed to preserve for our review his contentions that County Court erred in its handling of jury notes Nos. 2 and 3 (see People v. Nealon, 26 NY3d 152, 158).  We reject defendant's contention that the court's handling of the jury notes constituted mode of proceedings errors and thus preservation is not required (see generally People v. O'Rama, 78 N.Y.2d 270, 279).  Defendant also failed to preserve for our review his contention that the court did not provide a meaningful response to the jury's request in note No. 3 for a readback of “all the testimony” of the victim (see People v. Morris, 27 NY3d 1096, 1097).  Contrary to defendant's contention, the court's alleged failure to provide a meaningful response to jury note No. 3 does not constitute a mode of proceedings error for which preservation is not required (see People v. Mack, 27 NY3d 534, 540–541, rearg. denied 28 NY3d 944).  We decline to exercise our power to review defendant's contentions with respect to the jury notes as a matter of discretion in the interest of justice (see CPL 470.15 [6][a] ).  Defendant's claim of ineffective assistance of counsel with respect to jury note No. 3 lacks merit.

Although we agree with defendant that the procedure in CPL 270.15(2) with respect to the sequence for exercising challenges for cause to prospective jurors was violated during jury selection, we conclude that defendant waived any challenge thereto by failing to object (see generally People v. Boylan, 190 A.D.2d 1043, 1043, lv dismissed 81 N.Y.2d 882, lv denied 81 N.Y.2d 967).

Defendant further contends that the court erred in admitting in evidence the testimony of a sexual assault nurse practitioner who examined the victim because it was based entirely on inadmissible hearsay that constituted improper bolstering of the victim's testimony.  Defendant failed to preserve that contention for our review (see People v. Erle, 83 AD3d 1442, 1443, lv denied 17 NY3d 794), 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] ).

We reject defendant's contention that he was denied due process because the sentence imposed was based upon the Judge's personal religious beliefs.  The statements of the Judge “do not, [per se], indicate that the Judge's imposition of sentence herein was in any way based upon his personal religious beliefs” (People v. Berrios, 176 A.D.2d 547, 549, lv denied 79 N.Y.2d 824), and the court properly considered the appropriate factors in sentencing defendant (see generally People v. Farrar, 52 N.Y.2d 302, 305–306).  Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court