        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1003
KA 12-00426
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD E. SHINEBARGER, DEFENDANT-APPELLANT.


KELIANN M. ELNISKI, ORCHARD PARK, FOR DEFENDANT-APPELLANT.

KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT, FOR RESPONDENT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered July 14, 2011. The judgment convicted defendant,
upon a jury verdict, of rape in the first degree and course of sexual
conduct against a child in the first degree.

     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 first degree (Penal Law § 130.35
[4]) and course of sexual conduct against a child in the first degree
(§ 130.75 [1] [b]). Defendant failed to preserve for our review his
contention that the People did not establish an adequate chain of
custody with respect to the underwear collected from defendant’s home
and the rape kit performed on the victim (see People v Alexander, 48
AD3d 1225, 1226, lv denied 10 NY3d 859). In any event, that
contention lacks merit. “The police provided sufficient assurances of
the identity and unchanged condition of th[at] evidence . . . , and
thus any alleged gaps in the chain of custody went to [its] weight . .
. , not its admissibility” (People v Kennedy, 78 AD3d 1477, 1478, lv
denied 16 NY3d 798; see People v Hawkins, 11 NY3d 484, 494; People v
Julian, 41 NY2d 340, 343).

     Defendant raises several points in support of his challenge to
the verdict as against the weight of the evidence. First, defendant
contends that County Court erred in admitting hearsay evidence in the
form of the victim’s verbal disclosure of the rape. We reject that
contention on the ground that the victim’s statements were admissible
under the prompt outcry exception to the rule against hearsay (see
generally People v Shelton, 1 NY3d 614, 615). Defendant further
contends that the court erred in overruling his objection to certain
testimony of a police officer as “oblique” or indirect hearsay. We
reject that contention on the ground that the officer’s testimony “did
not implicate acts that were intended as or could be interpreted as .
                                 -2-                          1003
                                                         KA 12-00426

. . assertion[s]” (People v Carpenter, 52 AD3d 1050, 1051, lv
denied 11 NY3d 735, cert denied ___ US ___, 129 S Ct 1613; see People
v Salko, 47 NY2d 230, 239, remittitur amended 47 NY2d 1010).
Defendant also challenges the credibility of the People’s witnesses,
but we cannot conclude that the testimony of those witnesses was “so
inconsistent or unbelievable as to render it incredible as a matter of
law” (People v Black, 38 AD3d 1283, 1285, lv denied 8 NY3d 982). We
note that “[r]esolution of issues of credibility, as well as the
weight to be accorded to the evidence presented, are primarily
questions to be determined by the jury” (People v Witherspoon, 66 AD3d
1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted]).
Thus, 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 People v Bleakley, 69 NY2d 490, 495).

     Contrary to defendant’s further contention, the court properly
exercised its discretion in denying his motion for new assigned
counsel. “The court conducted the requisite inquiry when defendant
made his . . . request for substitution of counsel and concluded that
defendant’s objections[, which concerned defense counsel’s lack of
candor in advising him,] were without merit” (People v Johnson, 103
AD3d 1251, 1251, lv denied 21 NY3d 1005; see People v Barber, 66 AD3d
1370, 1371, lv denied 13 NY3d 937; see generally People v Porto, 16
NY3d 93, 99-100). Finally, although not raised by defendant, we note
that the prosecutor improperly asked defendant on cross-examination
whether the prosecution witnesses were lying. We again forcefully
condemn such questions (see People v Washington, 89 AD3d 1516, 1516-
1517, lv denied 18 NY3d 963), although we note that the issue would
not require reversal of the judgment herein inasmuch as the
prosecutor’s misconduct did not substantially prejudice defendant (see
People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912).




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
