THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LEE COOPER DEFENDANT APPELLANT (2026)

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 four counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) and two counts of endangering the welfare of a child (§ 260.10 [1]). We affirm.

Contrary to defendant's contention, County Court properly denied his motion for a mistrial. The two victims testified that defendant had sexual contact with them five or more times, and defendant moved for a mistrial on the ground that their testimony constituted improper evidence of uncharged bad acts. The incidents of sexual contact, however, were relevant to the counts of the indictment charging endangering the welfare of a child, which alleged that defendant subjected the victims to sexual contact “on multiple occasions.”

Inasmuch as a defendant may be guilty of endangering the welfare of a child “ ‘by virtue of a series of acts, none of which may be enough by itself to constitute the offense, but each of which when combined make out the crime’ ” (People v Bernardo, 84 AD3d 1717, 1718 [4th Dept 2011], lv denied 17 NY3d 813 [2011], quoting People v Keindl, 68 NY2d 410, 421 [1986], rearg denied 69 NY2d 823 [1987]), and the language in the indictment here was “broad enough to encompass all the sexual contact as testified to by the victim[s],” the victims’ testimony did not constitute improper evidence of uncharged acts (People v Hymes, 174 AD3d 1295, 1297 [4th Dept 2019], affd 34 NY3d 1178 [2020]; see People v Figueroa, 15 AD3d 914, 915 [4th Dept 2005]; see generally People v Frumusa, 29 NY3d 364, 369-370 [2017], rearg denied 29 NY3d 1110 [2017]). Defendant's additional contention that the testimony regarding alleged prior bad acts deprived him of his right to a fair trial is not preserved for our review inasmuch as he did not raise that contention in his motion for a mistrial (see CPL 470.05 [2]). Likewise, his contention that admitting the evidence created a duplicity issue at trial is also not preserved for our review (see People v Allen, 24 NY3d 441, 449-450 [2014]; People v Rath, 192 AD3d 1600, 1602 [4th Dept 2021], lv denied 37 NY3d 959 [2021]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Defendant next contends that the verdict is against the weight of the evidence considering the vague nature of the victims’ testimony and defendant's testimony in which he denied that any abuse occurred. Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although a different verdict would not have been unreasonable, it cannot be said that the jury “failed to give the evidence the weight it should be accorded” (id.).

Defendant failed to preserve for our review his contention that prosecutorial misconduct during the prosecutor's opening and closing statements denied him a fair trial (see People v Reynolds, 211 AD3d 1493, 1494 [4th Dept 2022], lv denied 39 NY3d 1079 [2023]). In any event, we conclude that most of the prosecutor's statements were either fair response to defense counsel's summation or fair comment on the evidence (see People v Smith, 224 AD3d 1221, 1222 [4th Dept 2024], lv denied 41 NY3d 985 [2024]; People v Carducci, 143 AD3d 1260, 1262 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]). Although the prosecutor improperly appealed to the emotions of the jury with her final remark on summation, we conclude that the prosecutor's conduct as a whole was not so egregious as to deprive defendant of a fair trial (see People v Carlson, 184 AD3d 1139, 1142 [4th Dept 2020], lv denied 35 NY3d 1064 [2020]; People v Garrow, 171 AD3d 1542, 1546 [4th Dept 2019], lv denied 34 NY3d 931 [2019]).

Inasmuch as defendant was not denied a fair trial by prosecutorial misconduct, we reject defendant's contention that defense counsel's failure to object to the alleged instances of prosecutorial misconduct constitutes ineffective assistance of counsel (see People v Farrington, 171 AD3d 1538, 1540 [4th Dept 2019], lv denied 34 NY3d 930 [2019]; People v Reed, 151 AD3d 1821, 1822-1823 [4th Dept 2017], lv denied 30 NY3d 952 [2017]). Defendant also contends that defense counsel was ineffective in failing to make a duplicity argument, but that single error does not constitute ineffective assistance (see People v Lobes, 199 AD3d 1393, 1394 [4th Dept 2021], lv denied 38 NY3d 928 [2022]). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).

Contrary to defendant's contention, the sentence is not unduly harsh or severe. We agree with defendant, however, and the People correctly concede, that the uniform sentence and commitment form erroneously states that counts 3 and 4 run consecutively with all other counts and must be amended to state that the sentences on counts 3 and 4 shall run concurrently with each other but consecutively to counts 1 and 2 (see People v Lewis, 185 AD3d 1542, 1544 [4th Dept 2020], lv denied 35 NY3d 1114 [2020]; People v Hoke, 167 AD3d 1549, 1550 [4th Dept 2018], lv denied 33 NY3d 949 [2019]).

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court