People v. McCovery

Appellate Division of the Supreme Court of New York

People v. McCovery

254 A.D.2d 751, 679 N.Y.S.2d 493, 1998 N.Y. App. Div. LEXIS 10446

Appellate Division of the Supreme Court of the State of New York·Decided October 2, 1998·Published·Cited by 5 cases

Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of rape in the first degree (Penal Law § 130.35 [1]), sexual abuse in the first degree (Penal Law § 130.65 [1]) and assault in the second degree (Penal Law § 120.05 [6]).

Defendant contends that he was denied a fair trial by prosecutorial misconduct. Defendant’s only objections to the prosecutor’s improper questions were sustained, however, and defendant did not request a further curative instruction or move for a mistrial. “Thus, the court ‘must be deemed to have corrected the error to the defendant’s satisfaction’ ” (People v Balkum, 233 AD2d 929, 930, lv denied 89 NY2d 939, quoting People v Williams, 46 NY2d 1070, 1071). Defendant failed to preserve for our review the other alleged misconduct of the prosecutor (see, CPL 470.05 [2]; People v Albert, 222 AD2d 1005, lv denied 88 NY2d 844, 979). Even were we to reach that issue as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]), we would conclude that defendant’s contention lacks merit. The alleged misconduct of the prosecutor did not cause such substantial prejudice to defendant that he was denied due process (see, People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711).

Defendant was not denied effective assistance of counsel (see, People v Benevento, 91 NY2d 708). “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147).

We reject defendant’s contention that the verdict is contrary to the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). “[Credibility is a matter to be determined by the trier of the facts (see, People v Malizia, 62 NY2d 755, 757, cert [752]*752denied 469 US 932) and the jury was in the best position to resolve the conflict in the testimony” (People v Conner, 195 AD2d 1078, lv denied 82 NY2d 715; see, People v Gaskin, 186 AD2d 995).

Finally, we conclude that the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Onondaga County Court, Burke, J. — Rape, 1st Degree.) Present — Green, J. P., Lawton, Callahan, Boehm and Fallon, JJ.

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Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of rape in the first degree (Penal Law § 130.35 [1]), sexual abuse in the first degree (Penal Law § 130.65 [1]) and assault in the second degree (Penal Law § 120.05 [6]).

Defendant contends that he was denied a fair trial by prosecutorial misconduct. Defendant’s only objections to the prosecutor’s improper questions were sustained, however, and defendant did not request a further curative instruction or move for a mistrial. “Thus, the court ‘must be deemed to have corrected the error to the defendant’s satisfaction’ ” (People v Balkum, 233 AD2d 929, 930, lv denied 89 NY2d 939, quoting People v Williams, 46 NY2d 1070, 1071). Defendant failed to preserve for our review the other alleged misconduct of the prosecutor (see, CPL 470.05 [2]; People v Albert, 222 AD2d 1005, lv denied 88 NY2d 844, 979). Even were we to reach that issue as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]), we would conclude that defendant’s contention lacks merit. The alleged misconduct of the prosecutor did not cause such substantial prejudice to defendant that he was denied due process (see, People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711).

Defendant was not denied effective assistance of counsel (see, People v Benevento, 91 NY2d 708). “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147).

We reject defendant’s contention that the verdict is contrary to the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). “[Credibility is a matter to be determined by the trier of the facts (see, People v Malizia, 62 NY2d 755, 757, cert [752]*752denied 469 US 932) and the jury was in the best position to resolve the conflict in the testimony” (People v Conner, 195 AD2d 1078, lv denied 82 NY2d 715; see, People v Gaskin, 186 AD2d 995).

Finally, we conclude that the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Onondaga County Court, Burke, J. — Rape, 1st Degree.) Present — Green, J. P., Lawton, Callahan, Boehm and Fallon, JJ.

People v. McCovery, 254 A.D.2d 751, 679 N.Y.S.2d 493, 1998 N.Y. App. Div. LEXIS 10446 (N.Y. Ct. App. 1998).

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