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

225
KA 09-00903
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

RICHARD E. AIKEY, JR., DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

RICHARD E. AIKEY, JR., DEFENDANT-APPELLANT PRO SE.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered October 22, 2008. The judgment convicted
defendant, upon a jury verdict, of course of sexual conduct against a
child in the second degree and endangering the welfare of a child (two
counts).

     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, course of sexual conduct against a child in
the second degree (Penal Law § 130.80 [1] [b]), defendant contends
that the verdict is against the weight of the evidence based on
inconsistencies in the testimony of one of the victims. 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 reject that contention
(see generally People v Bleakley, 69 NY2d 490, 495). “Great deference
is to be accorded to the fact [ ]finder’s resolution of credibility
issues based upon its superior vantage point and its opportunity to
view witnesses, observe demeanor and hear the testimony” (People v
Curry, 82 AD3d 1650, 1651, lv denied 17 NY3d 805 [internal quotation
marks omitted]; see People v Mateo, 2 NY3d 383, 410, cert denied 542
US 946).

     Contrary to defendant’s further contention, County Court did not
abuse its discretion in denying his request for an adjournment when
his attorney became ill. “The court’s exercise of discretion in
denying a request for an adjournment will not be overturned absent a
showing of prejudice” (People v Arroyo, 161 AD2d 1127, 1127, lv denied
76 NY2d 852). Here, defense counsel continued to represent defendant
at trial, and thus defendant failed to establish that he was
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                                                            KA 09-00903

prejudiced by the court’s denial of his request.

     We reject defendant’s contention that he was punished for
exercising his right to a trial. “ ‘[T]he mere fact that a sentence
imposed after trial is greater than that offered in connection with
plea negotiations is not proof that defendant was punished for
asserting his right to trial’ ” (People v Powell, 81 AD3d 1307, 1308,
lv denied 17 NY3d 799; see generally People v Pena, 50 NY2d 400,
411-412, rearg denied 51 NY2d 770, cert denied 449 US 1087). The
record before us establishes that, although the court indicated it was
willing to accept an Alford plea with a shorter sentence than the
sentence that was eventually imposed, that offer was made to spare the
child victims the trauma of testifying against defendant, their uncle
(see People v Austin, 190 AD2d 508, 509, lv denied 81 NY2d 1011).
“There is no ‘evidence that defendant was given the lengthier sentence
solely as a punishment for exercising his right to a trial’ ” (People
v Johnson, 56 AD3d 1172, 1173, lv denied 11 NY3d 926; see Pena, 50
NY2d at 411-412). In addition, the sentence is not unduly harsh or
severe.

     Defendant’s contention in his pro se supplemental brief that the
court erred in allowing the People’s expert to bolster the testimony
of one of the victims is not preserved for our review (see People v
Smith, 24 AD3d 1253, 1253, lv denied 6 NY3d 818). In any event, that
contention is without merit (see generally People v Carroll, 95 NY2d
375, 387; People v Wallace, 60 AD3d 1268, 1270, lv denied 12 NY3d
922). Contrary to the further contention of defendant in his pro se
supplemental brief, “[t]he failure of defense counsel to obtain the
testimony of an expert does not constitute ineffective assistance of
counsel because defendant has not shown that ‘such testimony was
available, that it would have assisted the jury in its determination
or that [defendant] was prejudiced by its absence’ ” (People v Brandi
E., 38 AD3d 1218, 1219, lv denied 9 NY3d 863; see People v Prince, 5
AD3d 1098, 1098, lv denied 2 NY3d 804).




Entered:   April 27, 2012                          Frances E. Cafarell
                                                   Clerk of the Court
