PEOPLE v. ARCHBOLD

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Kenneth Allan ARCHBOLD, Defendant-Appellant.

Decided: May 17, 2007

ANDRIAS, J.P., BUCKLEY, CATTERSON, MALONE, KAVANAGH, JJ. Paul F. Dwyer, Albany, for appellant. Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.

Amended judgment, Supreme Court, New York County (Bruce Allen, J.), rendered April 19, 2005, convicting defendant, after a jury trial, of assault in the first degree, aggravated sexual abuse in the second degree, sexual abuse in the first degree (two counts) and assault in the second degree, and sentencing him to an aggregate term of 6 years, unanimously affirmed.

The verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

 Following a pretrial hearing, the court properly exercised its discretion in permitting the introduction of evidence of a series of uncharged crimes and bad acts, committed against the victim in this case.   This evidence was admissible in this domestic violence case to prove the element of forcible compulsion (see People v. Cook, 93 N.Y.2d 840, 688 N.Y.S.2d 89, 710 N.E.2d 654 [1999] ), “to explain the relationship between defendant and the victim and to place the events in question in a believable context, particularly since defendant raised the issue of the victim's delay in reporting the charged criminal conduct” (People v. Rosario, 34 A.D.3d 370, 824 N.Y.S.2d 296 [2006] ), and to establish intent, motive and identity (see People v. Bierenbaum, 301 A.D.2d 119, 150, 748 N.Y.S.2d 563 [2002], lv. denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281 [2003], cert. denied 540 U.S. 821, 124 S.Ct. 134, 157 L.Ed.2d 40 [2003] ).   The probative value of this evidence outweighed its prejudicial effect.

 The court also properly admitted the victim's statements to two physicians, since each statement qualified as a “prompt outcry” under the circumstances (see People v. McDaniel, 81 N.Y.2d 10, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993];  People v. Vanterpool, 214 A.D.2d 429, 625 N.Y.S.2d 38 [1995], lv. denied 86 N.Y.2d 875, 635 N.Y.S.2d 956, 659 N.E.2d 779 [1995];  People v. Fabian, 213 A.D.2d 298, 625 N.Y.S.2d 4 [1995], lv. denied 85 N.Y.2d 972, 629 N.Y.S.2d 732, 653 N.E.2d 628 [1995] ).   Defendant did not preserve his remaining arguments concerning prompt outcry testimony and other alleged hearsay, his additional uncharged crimes arguments, and his repugnant verdict and Fourth Amendment claims, and we decline to review them in the interest of justice.   Were we to review these claims, we would find them without merit.

The record establishes that defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   While defendant challenges his trial counsel's failure to make various objections, we conclude that the absence of these objections did not deprive defendant of a fair trial or affect the result.