PEOPLE v. MARTIN (2019)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, following a bench trial, of two counts each of forcible touching (Penal Law § 130.52[1] ), sexual abuse in the third degree (§ 130.55), and endangering the welfare of a child (§ 260.10[1] ).  “Viewing the evidence in light of the elements of the crimes in this nonjury trial” (People v. Hutchings, 142 A.D.3d 1292, 1293, 38 N.Y.S.3d 863 [4th Dept. 2016], lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016]; see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), 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 [1987] ).  County Court “reasonably found defendant's exculpatory testimony incredible and rejected it ․ and, notwithstanding minor inconsistencies in the [victim's] testimony ․, ‘there is no basis for disturbing the [court's] determinations concerning credibility’ ” (People v. Sommerville, 159 A.D.3d 1515, 1516, 72 N.Y.S.3d 704 [4th Dept. 2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ).

Defendant's contention that the trial testimony rendered the indictment duplicitous is unpreserved for appellate review (see People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see e.g. People v. Garner, 145 A.D.3d 1573, 1574, 43 N.Y.S.3d 838 [4th Dept. 2016], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ).  Contrary to defendant's contention, defense counsel was not ineffective in failing to seek the dismissal of the endangering the welfare of a child counts on statute of limitations grounds (see People v. Ambers, 26 N.Y.3d 313, 318–320, 22 N.Y.S.3d 400, 43 N.E.3d 757 [2015]; People v. Evans, 16 N.Y.3d 571, 575–576, 925 N.Y.S.2d 366, 949 N.E.2d 457 [2011], cert denied 565 U.S. 912, 132 S.Ct. 325, 181 L.Ed.2d 201 [2011]; People v. St. Pierre, 141 A.D.3d 958, 961–962, 36 N.Y.S.3d 292 [3d Dept. 2016], lv denied 28 N.Y.3d 1031, 45 N.Y.S.3d 382, 68 N.E.3d 111 [2016] ).  Even if, as defendant asserts, the court's admission of testimony about a missing photograph violated the best evidence rule, any such error is harmless (see People v. Haggerty, 23 N.Y.3d 871, 876, 993 N.Y.S.2d 668, 18 N.E.3d 379 [2014]; Hutchings, 142 A.D.3d at 1294, 38 N.Y.S.3d 863).

Defendant's challenges to the conditions of his probation are unpreserved for appellate review, and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see generally People v. Graves, 163 A.D.3d 16, 24–25, 78 N.Y.S.3d 613 [4th Dept. 2018]; People v. King, 151 A.D.3d 1651, 1654, 56 N.Y.S.3d 398 [4th Dept. 2017], lv denied 30 N.Y.3d 951, 67 N.Y.S.3d 134, 89 N.E.3d 524 [2017]; cf. generally People v. Letterlough, 86 N.Y.2d 259, 261–269, 631 N.Y.S.2d 105, 655 N.E.2d 146 [1995]; People v. Saraceni, 153 A.D.3d 1559, 1560, 61 N.Y.S.3d 748 [4th Dept. 2017], lv denied 30 N.Y.3d 913 , 2018 WL 943649[2018] ).  Finally, the incarceration component of the split sentence is not illegal (see Penal Law § 60.01[2][d]; see generally People v. Zephrin, 14 N.Y.3d 296, 300–301, 899 N.Y.S.2d 739, 926 N.E.2d 246 [2010] ).