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

767
KA 11-02498
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WALTER LEWIS, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered November 30, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the first
degree, assault in the second degree, criminal possession of a weapon
in the third degree, unlawful imprisonment in the second degree, and
assault in the third degree (two counts).

     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, inter alia, assault in the second degree
(Penal Law § 120.05 [2]) and two counts of assault in the third degree
(§ 120.00 [1]). During the trial, County Court admitted in evidence
certain portions of the victim’s recorded 911 call pursuant to the
excited utterance and prompt outcry exceptions to the hearsay rule.
Defendant’s contention that the court erred in admitting this
recording and that he was thereby deprived of a fair trial is not
preserved for our review (see CPL 470.05 [2]; People v Gray, 86 NY2d
10, 19), and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     Defendant further contends that the court erred in permitting the
physician who examined the victim to testify that the victim reported
being hit by defendant. Defendant failed to preserve that contention
for our review inasmuch as defense counsel made only an “unspecified
objection to the disputed testimony followed by an off-the-record
side-bar” (People v Nurse, 176 AD2d 197, 198, lv denied 79 NY2d 830).
In any event, we conclude that any error in the admission of the
testimony was harmless because the evidence of defendant’s guilt is
overwhelming, and there is no significant probability that the jury
would have acquitted defendant if the testimony had been excluded (see
                                 -2-                           767
                                                         KA 11-02498

generally People v Crimmins, 36 NY2d 230, 241-242; People v Thomas,
282 AD2d 827, 828-829, lv denied 96 NY2d 925).

     The general motion made by defendant for a trial order of
dismissal did not preserve for our review his contention with respect
to counts one and two of the indictment that the evidence is
insufficient to show that the victim sustained a physical injury (see
Penal Law §§ 10.00 [9]; 120.05 [2]; 120.00 [1]; People v Chiddick, 8
NY3d 445, 447-448; Gray, 86 NY2d at 19). In any event, viewing the
evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that there is a valid line of
reasoning and permissible inferences to support the jury’s finding
that the victim sustained a physical injury (see § 10.00 [9];
Chiddick, 8 NY3d at 447-448; see generally People v Bleakley, 69 NY2d
490, 495).

     Finally, we reject defendant’s contention that the verdict is
against the weight of the evidence because of inconsistencies in the
victim’s testimony. The victim’s testimony was not “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). Any
inconsistencies in the victim’s testimony presented issues of
credibility for determination by the jury (see People v Scheidelman,
125 AD3d 1426, 1426-1427), and we see no basis for disturbing the
jury’s credibility determinations in this case. Viewing the evidence
in light of the elements of the crimes as charged to the jury (see
generally People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see Bleakley, 69
NY2d at 495).




Entered:   June 12, 2015                       Frances E. Cafarell
                                               Clerk of the Court
