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

984
KA 09-02478
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM CULLEN, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered September 11, 2009. The judgment
convicted defendant, upon a jury verdict, of rape in the second degree
(two counts), criminal sexual act in the second degree and incest in
the second degree (three 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 two counts of rape in the second degree (Penal
Law § 130.30 [1]), one count of criminal sexual act in the second
degree (§ 130.45 [1]) and three counts of incest in the second degree
(§ 255.26). Contrary to defendant’s contention, we conclude that,
viewing the evidence in light of the elements of the crimes 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 People v
Bleakley, 69 NY2d 490, 495). Defendant’s challenge to the weight of
the evidence is based largely upon the alleged incredibility of the
victim, and we conclude that there is no basis in the record for us to
disturb the jury’s credibility determinations (see People v Johnson,
94 AD3d 1563, 1564, lv denied 19 NY3d 962; People v Ellison, 302 AD2d
955, 955, lv denied 99 NY2d 654). Indeed, the letters written by
defendant to the victim provide “compelling corroboration of the
victim’s testimony as to the nature of their relationship” (People v
Hopkins, 56 AD3d 820, 823).

     Defendant further contends that Supreme Court erred in permitting
the prosecutor to improperly bolster the victim’s testimony by
eliciting testimony from two witnesses concerning the victim’s prior
consistent statements. We conclude that the testimony of the
witnesses at issue did not constitute improper bolstering inasmuch as
                                 -2-                           984
                                                         KA 09-02478

it was not admitted for its truth (see People v Ludwig, 104 AD3d 1162,
1163). Defendant failed to preserve for our review his contention
that certain remarks made by the prosecutor during opening statements
and on summation constituted prosecutorial misconduct that deprived
him of a fair trial inasmuch as he failed to object to those remarks
(see People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). In
any event, reversal is not required based upon the alleged misconduct
(see People v Sweeney, 15 AD3d 917, 917, lv denied 4 NY3d 891; see
generally People v Galloway, 54 NY2d 396, 401).

     Defendant also contends that the court erred in allowing the
People to present evidence of various uncharged acts of sexual
misconduct and violence committed against the victim. Defendant
failed to preserve for our review his contention with respect to many
of the instances of alleged error (see People v Hunt, 74 AD3d 1741,
1742, lv denied, 15 NY3d 806; People v Williams, 26 AD3d 772, 773, lv
denied 6 NY3d 840), and we decline to exercise our power to review his
contention regarding those alleged errors as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [a]). We reject
defendant’s contention with respect to the remaining alleged errors,
and we conclude that the challenged evidence was properly admitted
because it placed the “ ‘charged conduct in context’ ” and “ ‘provided
necessary background information on the nature of the relationship’
between defendant and the victim” (People v Leeson, 12 NY3d 823, 827,
quoting People v Dorm, 12 NY3d 16, 19; see People v Shofkom, 63 AD3d
1286, 1287, lv denied 13 NY3d 799, appeal dismissed 13 NY3d 933).

     Defendant contends that the court erred in admitting letters he
wrote to the victim because their prejudicial effect outweighed their
probative value. Defendant failed to preserve his present contention
for our review because it differs from that raised before the trial
court (see People v Marra, 96 AD3d 1623, 1625, affd 21 NY3d 979), and
we decline to exercise our power to review it as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant also failed to preserve for our review his contention that
the court erred in constructively amending the indictment (see
generally People v Little, 23 AD3d 1117, 1118, lv denied 6 NY3d 777).
In any event, defendant’s contention lacks merit inasmuch as defendant
conceded that he was not prejudiced by the constructive amendment, and
the amendment did not change the theory of the prosecution (see People
v Williams, 24 AD3d 882, 883-884, lv denied 6 NY3d 854).

     Contrary to defendant’s further contention, his sentence is not
unduly harsh or severe. Finally, we have reviewed defendant’s
remaining contention concerning the alleged ineffective assistance of
counsel and conclude that defendant received meaningful representation
(see generally People v Baldi, 54 NY2d 137, 147).




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