PEOPLE v. AIKEY

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The PEOPLE of the State of New York, Respondent, v. Richard E. AIKEY, Jr., Defendant–Appellant.

Decided: April 27, 2012

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ. John E. Tyo, Shortsville, for Defendant–Appellant. Richard E. Aikey, Jr., Defendant–Appellant Pro Se. R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.

On appeal from a judgment convicting him upon a jury verdict of, inter alia, course of sexual conduct against a child in the second degree (Penal Law § 130.80[1][b] ), defendant contends that the verdict is against the weight of the evidence based on inconsistencies in the testimony of one of the victims. 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 reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495). “Great deference is to be accorded to the fact [ ]finder's resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony” (People v. Curry, 82 AD3d 1650, 1651, lv denied 17 NY3d 805 [internal quotation marks omitted]; see People v. Mateo, 2 NY3d 383, 410, cert denied 542 U.S. 946).

Contrary to defendant's further contention, County Court did not abuse its discretion in denying his request for an adjournment when his attorney became ill. “The court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice” (People v. Arroyo, 161 A.D.2d 1127, 1127, lv denied 76 N.Y.2d 852). Here, defense counsel continued to represent defendant at trial, and thus defendant failed to establish that he was prejudiced by the court's denial of his request.

We reject defendant's contention that he was punished for exercising his right to a trial. “ ‘[T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial’ “ (People v. Powell, 81 AD3d 1307, 1308, lv denied 17 NY3d 799; see generally People v. Pena, 50 N.Y.2d 400, 411–412, rearg. denied 51 N.Y.2d 770, cert denied 449 U.S. 1087). The record before us establishes that, although the court indicated it was willing to accept an Alford plea with a shorter sentence than the sentence that was eventually imposed, that offer was made to spare the child victims the trauma of testifying against defendant, their uncle (see People v. Austin, 190 A.D.2d 508, 509, lv denied 81 N.Y.2d 1011). “There is no ‘evidence that defendant was given the lengthier sentence solely as a punishment for exercising his right to a trial’ “ (People v. Johnson, 56 AD3d 1172, 1173, lv denied 11 NY3d 926; see Pena, 50 N.Y.2d at 411–412). In addition, the sentence is not unduly harsh or severe.

Defendant's contention in his pro se supplemental brief that the court erred in allowing the People's expert to bolster the testimony of one of the victims is not preserved for our review (see People v. Smith, 24 AD3d 1253, 1253, lv denied 6 NY3d 818). In any event, that contention is without merit (see generally People v. Carroll, 95 N.Y.2d 375, 387; People v. Wallace, 60 AD3d 1268, 1270, lv denied 12 NY3d 922). Contrary to the further contention of defendant in his pro se supplemental brief, “[t]he failure of defense counsel to obtain the testimony of an expert does not constitute ineffective assistance of counsel because defendant has not shown that ‘such testimony was available, that it would have assisted the jury in its determination or that [defendant] was prejudiced by its absence’ “ (People v. Brandi E., 38 AD3d 1218, 1219, lv denied 9 NY3d 863; see People v. Prince, 5 AD3d 1098, 1098, lv denied 2 NY3d 804).

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

MEMORANDUM: