         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1218
KA 10-01155
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN L. DONALDSON, SR., DEFENDANT-APPELLANT.


JAMES L. DOWSEY, III, WEST VALLEY (KELIANN M. ELNISKI OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered March 1, 2010. The judgment convicted
defendant, upon a jury verdict, of rape in the third degree and
endangering the welfare of a child.

     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 rape in the third degree (Penal Law § 130.25
[2]) and endangering the welfare of a child (§ 260.10 [1]). We reject
defendant’s contention that County Court erred in admitting in
evidence recorded telephone conversations between defendant and the
victim. The People established a sufficient foundation to admit the
recordings in evidence through the testimony of the victim, who
identified the voices and recalled the conversations, and the
testimony of the police lieutenant who witnessed the conversation and
operated the recording equipment. Both witnesses testified that the
recording was accurate and unaltered, and “[t]he People thus
established that the offered evidence [was] genuine and that there
[had] been no tampering with it” (People v Myers, 87 AD3d 826, 828
[internal quotation marks omitted]; see generally People v Ely, 68
NY2d 520, 527-528).

     Defendant further contends that the evidence is legally
insufficient to support the conviction because, inter alia, the People
failed to present sufficient evidence to corroborate the victim’s
testimony. That contention is not preserved for our review inasmuch
as defendant made only a general motion for a trial order of dismissal
and failed to renew that motion after presenting evidence (see People
v Kolupa, 13 NY3d 786, 787; People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678). In any event, defendant’s contention lacks merit
                                 -2-                          1218
                                                         KA 10-01155

(see generally People v Bleakley, 69 NY2d 490, 495). There is no
requirement of corroboration where, as here, the victim gave sworn
testimony (see People v Lamphier, 302 AD2d 864, 865, lv denied 99 NY2d
656). Contrary to defendant’s contention, he was not denied effective
assistance of counsel based upon defense counsel’s failure to renew
that motion “because, in view of our determination that the evidence
is indeed legally sufficient, defendant has not established that such
a motion ‘would be meritorious upon appellate review’ ” (People v
Carrasquillo, 71 AD3d 1591, 1591, lv denied 15 NY3d 803). 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 conclude that the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).

     Defendant preserved for our review his further contention with
respect to only one of the allegedly improper comments made by the
prosecutor during summation, and we conclude that the court dispelled
any prejudice arising from that comment when it sustained defendant’s
objection (see People v Rickard, 26 AD3d 800, lv denied 7 NY3d 762).
In any event, we conclude that defendant’s contention with respect to
the remaining alleged instances of prosecutorial misconduct is without
merit. Finally, we reject the contention of defendant that he was
denied effective assistance of counsel based on defense counsel’s
failure to object to those allegedly improper comments inasmuch as
they did not constitute prosecutorial misconduct (see People v Hill,
82 AD3d 1715, 1716, lv denied 17 NY3d 806).




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
