People v. Hess

234 A.D.2d 925, 653 N.Y.S.2d 216, 1996 N.Y. App. Div. LEXIS 13650

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1996
• Status: Published

Opinions

—Judgment affirmed. Memorandum: On appeal from a judgment convicting him upon a jury verdict of rape in the first degree, assault in the second degree, endangering the welfare of a child, assault in the third degree (three counts), intimidation of a witness in the third degree, criminal trespass in the second degree, and criminal contempt in the second degree, defendant contends that he was deprived of a fair trial by prosecutorial misconduct. By failing to object to most of the statements by the prosecutor that are now alleged to constitute misconduct, defendant failed to preserve for our review his contentions with respect to those statements (see, CPL 470.05 [2]; People v Jacobs, 225 AD2d 1088, lv denied 88 NY2d 880). In those instances in which defendant objected to the alleged misconduct, and in one instance in which defendant did not object, "the trial court took appropriate steps to dilute its effect” (People v Curley, 159 AD2d 969, 970, lv denied 76 NY2d 733). Although we do not condone the prosecutor’s statements, "we find that the Judge’s firm control over the trial obviated any prejudice to defendant that might have resulted from the Prosecutor’s misconduct” (People v Christopher, 170 AD2d 1020, 1021, lv denied 78 NY2d 921).

Prosecutorial misconduct warrants reversal " 'only when the conduct has caused such substantial prejudice to the defendant that he has been denied due process of law’ ” (People v Rubin, 101 AD2d 71, 77, quoting People v Mott, 94 AD2d 415, 419). Defendant admitted the facts underlying the three charges of assault in the third degree, the charge of intimidating a witness, and the charge of criminal contempt. Defendant admitted having hit the victim on other occasions, having grabbed her breast, and having threatened to burn her with a cigarette. Defendant also changed some aspects of his testimony on cross-examination. Defendant nevertheless contended that the sexual intercourse underlying the charge of first degree rape was consensual, and that he did not commit the crime of second degree assault at that time. In light of the corrective measures taken by Supreme Court, the alleged prosecutorial misconduct would not have affected the jury’s resolution of the credibility issue against defendant on the rape and second degree assault charges.

We further reject the contention that counsel was ineffective. Defendant received meaningful representation (see, People v Satterfield, 66 NY2d 796, 798-799; People v Carr, 234 AD2d 951 [decided herewith]).

All concur except Fallon and Boehm, JJ., who dissent and vote to reverse in the following Memorandum.