PEOPLE v. EDWARDS (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, 13 counts each of rape in the second degree (Penal Law § 130.30[1] ) and criminal sexual act in the second degree (§ 130.45[1] ).  Defendant failed to preserve for our review his contention that the indictment was multiplicitous (see People v. Quinn, 103 A.D.3d 1258, 1258, 962 N.Y.S.2d 527 [4th Dept. 2013], lv denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 [2013] ), and duplicitous (see People v. Becoats, 17 N.Y.3d 643, 650–651, 934 N.Y.S.2d 737, 958 N.E.2d 865 [2011], cert denied 566 U.S. 964, 132 S.Ct. 1970, 182 L.Ed.2d 822 [2012] ).  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 conviction is not supported by legally sufficient evidence inasmuch as his motion for a trial order of dismissal was not specifically directed at the grounds advanced on appeal, and we also note in any event that he failed to renew his motion after presenting evidence (see People v. Roman, 85 A.D.3d 1630, 1630, 925 N.Y.S.2d 310 [4th Dept. 2011], lv denied 17 N.Y.3d 821, 929 N.Y.S.2d 810, 954 N.E.2d 101 [2011] ).  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 [2007] ), we reject defendant's further contention that the verdict is 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 [1987] ).  With respect to the credibility of the victim, we note that her testimony “was not so inconsistent or unbelievable as to render it incredible as a matter of law” (People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375 [4th Dept. 2007], lv denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661 [2007] ).  Issues of credibility are primarily for the jury's determination (see People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829 [4th Dept. 2009], lv denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [2010] ), and we see no basis for disturbing the jury's credibility determinations in this case.

Defendant contends that he was denied effective assistance of counsel based on counsel's failure to object to alleged prosecutorial misconduct on summation.  We reject that contention.  Most of the alleged instances of misconduct were fair comment on the evidence and fair response to defense counsel's summation (see People v. Redfield, 144 A.D.3d 1548, 1550, 41 N.Y.S.3d 632 [4th Dept. 2016], lv denied 28 N.Y.3d 1187, 52 N.Y.S.3d 714, 75 N.E.3d 106 [2017] ) and, to the extent that the prosecutor made inappropriate remarks, we conclude that they were “not so pervasive or egregious as to deprive defendant of a fair trial” (People v. Young, 153 A.D.3d 1618, 1620, 61 N.Y.S.3d 752 [4th Dept. 2017], lv denied 30 N.Y.3d 1065, 71 N.Y.S.3d 15, 94 N.E.3d 497 [2017] ).  We therefore conclude that defense counsel's failure to object to the alleged instances of prosecutorial misconduct did not constitute ineffective assistance of counsel (see People v. Blair, 121 A.D.3d 1570, 1571, 994 N.Y.S.2d 215 [4th Dept. 2014] ).  Finally, the sentence is not unduly harsh or severe.

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

Memorandum: