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

993
KA 13-01739
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RUDELL J. JEMES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered September 3, 2013. The judgment convicted defendant,
upon a jury verdict, of rape 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 following a
jury trial of rape in the first degree (Penal Law § 130.35 [1]),
defendant contends that County Court erred in refusing to suppress the
statements he made to the police and the DNA sample he provided at the
police station because he was coerced, i.e., the police conditioned
his freedom on his willingness to provide them with the statements and
the DNA sample. We reject that contention. The record demonstrates
that defendant voluntarily went to the police station, spoke with
detectives about the allegations against him after being informed of
his Miranda rights and waiving them, and voluntarily provided a DNA
sample after being advised that he could refuse to do so. Although
the detectives prefaced the recitation of defendant’s rights by
stating that they wanted to hear defendant’s “version of what
happened” in order to “clear things up,” and that defendant would be
free to leave after speaking with them, those statements did not
“effectively vitiate[] or . . . neutralize[] the effect of the
subsequently-delivered Miranda warnings” (People v Dunbar, 24 NY3d
304, 316, cert denied ___ US ___, 135 S Ct 2052).

     Defendant failed to preserve for our review his further
contentions that the court erred in not instructing the jury on the
voluntariness of his statements to the police, and in allowing the
prosecutor to question the victim about her prior consistent
statements (see CPL 470.05 [2]). We decline to exercise our power to
review those contentions as a matter of discretion in the interest of
                                    -2-                        993
                                                         KA 13-01739

justice (see CPL 470.15 [6] [a]).

     Contrary to defendant’s contention, viewing the evidence in the
light most favorable to the People (see People v Contes, 60 NY2d 620,
621), we conclude that the evidence is legally sufficient to support
his conviction (see generally People v Bleakley, 69 NY2d 490, 495),
and we further conclude that, viewing the evidence in light of the
elements of the crime as charged to the jury (see People v Danielson,
9 NY3d 342, 349), the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). The jury credited
the testimony of the victim that defendant had vaginal sexual
intercourse with her by forcible compulsion, over her protest, and
that testimony was corroborated by the medical evidence. We see no
reason to disturb the jury’s credibility determination in that regard,
even though the jury apparently rejected the victim’s testimony that
defendant also penetrated her anally, because “the jury was entitled
to assess the credibility of the [victim] and to credit certain parts
of the victim’s testimony while rejecting other parts” (People v
Weaver, 302 AD2d 872, 873, lv denied 99 NY2d 633).

     Defendant also contends that he was denied a fair trial by
prosecutorial misconduct. Defendant failed to preserve his contention
for our review with respect to the majority of the alleged instances
of misconduct inasmuch as defendant did not object to any of those
alleged instances (see People v Paul, 78 AD3d 1684, 1684-1685, lv
denied 16 NY3d 834), and we decline to exercise our power to review
that alleged misconduct as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). We further conclude that the two
instances of alleged prosecutorial misconduct preserved for our
review, i.e, allegedly leading questions asked of the victim and a
summation comment that it was the “job of a defense attorney to try
[to] trip up witnesses,” were not so egregious or prejudicial as to
deny defendant a fair trial (see e.g. People v DePillo, 262 AD2d 996,
997, lv denied 93 NY2d 1044).

     To the extent defendant contends that he was penalized for
exercising his right to a jury trial, defendant failed to preserve
that contention for our review (see People v Robinson, 104 AD3d 1312,
1314, lv denied 21 NY3d 1008), 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]). Finally, we reject defendant’s
challenge to the severity of the sentence.




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
