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

832
KA 11-01558
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEVEN M. SWANK, DEFENDANT-APPELLANT.


AMY L. HALLENBECK, JOHNSTOWN, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (COURTNEY E. PETTIT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered February 24, 2011. The judgment convicted
defendant, upon a jury verdict, of rape in the second degree, criminal
sexual act in the second degree (two counts) and unlawfully dealing
with a child in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, rape in the second degree (Penal Law § 130.30
[1]), defendant contends that the verdict is against the weight of the
evidence based on his own testimony, the testimony of the victim, and
the lack of evidence supporting the victim’s testimony. Specifically,
defendant contends that the victim’s testimony is not credible because
her trial testimony was internally inconsistent and was also
inconsistent with her statements to the police and her grand jury
testimony. 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).
“Although a different result would not have been unreasonable, the
jury was in the best position to assess the credibility of the
witnesses and, on this record, it cannot be said that the jury failed
to give the evidence the weight it should be accorded” (People v Orta,
12 AD3d 1147, 1147, lv denied 4 NY3d 801; see generally Bleakley, 69
NY2d at 495).

     Defendant failed to seek immunity for a witness that he called to
testify at a hearing on his CPL article 330 motion, and he thus failed
to preserve for our review his further contention that the prosecutor
abused his discretion “when he refused to request that [the witness]
be granted immunity from prosecution” (see generally People v
                                 -2-                             832
                                                           KA 11-01558

Callicut, 101 AD3d 1256, 1262 n 4, lv denied 20 NY3d 1096; People v
Norman, 40 AD3d 1130, 1131, lv denied 9 NY3d 925; People v Grimes, 289
AD2d 1072, 1073, lv denied 97 NY2d 755). In any event, that
contention is without merit inasmuch as the decision of a District
Attorney to request immunity for a witness is discretionary “ ‘and not
reviewable unless the District Attorney acts with bad faith to deprive
a defendant of his or her right to a fair trial’ ” (People v Bolling,
24 AD3d 1195, 1196, affd 7 NY3d 874; see generally CPL 50.30), and
here there was no showing of bad faith (see People v Adams, 53 NY2d
241, 247-248). Furthermore, the witness’s testimony “could have been
produced at trial with the exercise of due diligence, and it was not
of ‘such character as to create a probability that had such evidence
been received at the trial the verdict would have been favorable to
the defendant’ ” (People v Broadnax, 52 AD3d 1306, 1308, lv denied 11
NY3d 830, quoting CPL 330.30 [3]).

     Defendant failed to seek dismissal of a sworn juror on the ground
that she was grossly unqualified, and thus he also failed to preserve
for our review his contention that County Court erred in refusing to
grant that relief (see generally People v Hicks, 6 NY3d 737, 739). 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]). We
reject defendant’s further contention that he was denied effective
assistance of counsel based on defense counsel’s failure to move to
disqualify the juror as grossly unqualified. It is “ ‘incumbent on
defendant to demonstrate the absence of strategic or other legitimate
explanations’ for counsel’s alleged shortcomings” (People v Benevento,
91 NY2d 708, 712, quoting People v Rivera, 71 NY2d 705, 709), and
defendant failed to make such a showing here, particularly in light of
the indications in the record that the juror in question was the only
juror who was of the opinion that defendant should not be convicted.

    Finally, the sentence is not unduly harsh or severe.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
