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

388
KA 13-00959
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EVERTON SMITH, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered April 9, 2013. The judgment convicted defendant, upon a
jury verdict, of course of sexual conduct against a child in the first
degree and rape in the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of course of sexual conduct against a child in
the first degree (Penal Law § 130.75 [1] [b]) and rape in the third
degree (§ 130.25 [2]).

     Contrary to defendant’s contention, County Court did not err in
admitting in evidence the recording of the telephone conversation
between defendant and the victim, together with a transcript of that
conversation. The conversation was relevant, and the probative value
outweighed any prejudice inasmuch as defendant’s statements constitute
an acknowledgment of guilt (see generally People v Caban, 14 NY3d 369,
374-375; People v McCullough, 117 AD3d 1415, 1416, lv denied 23 NY3d
1040). Defendant failed to preserve for our review his contention
that the evidence violated his constitutional right to due process and
a fair trial. In any event, we conclude that the contention is
without merit.

     We agree with defendant, however, that the court erred in
admitting in evidence a video recording of the police interview of
defendant. Defendant did not make any admissions during the 1½-hour
interview, and the interviewing detective made references to alleged
inculpatory evidence that was not admitted in evidence at trial.
Although the court gave a limiting instruction that the jury was the
sole factfinder and that it was to make its own credibility
                                 -2-                           388
                                                         KA 13-00959

determinations and to disregard the detective’s statements that no one
would believe defendant, we conclude that any probative value of the
video recording “ ‘[was] substantially outweighed by the danger that
it [would] unfairly prejudice [defendant] or mislead the jury’ ”
(Caban, 14 NY3d at 375, quoting People v Scarola, 71 NY2d 769, 777;
see People v Lunsford, 244 AD2d 507, 507-508, lv denied 91 NY2d 927).
We nevertheless further conclude that the error is harmless inasmuch
as the evidence of guilt is overwhelming, and there is no significant
probability that defendant would have been acquitted if the video
recording had not been admitted in evidence (see People v Crimmins, 36
NY2d 230, 241-242).

     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
the conviction (see generally People v Bleakley, 69 NY2d 490, 495).
Furthermore, viewing the evidence in light of the elements of the
crimes as charged to the jury, we conclude that the verdict is not
against the weight of the evidence (see People v Danielson, 9 NY3d
342, 349; see generally Bleakley, 69 NY2d at 495). The victim
testified to several specific incidents of rape between July 2007 and
July 2008, when she was 12 years old, and to another incident when she
was 16 years old. During a recorded telephone conversation with the
victim, defendant made inculpatory statements. The victim asked
defendant several times to promise that he would stop having sex with
her, and he responded, “I will stop,” and “I promised.” When the
victim stated that he had promised in the past that he would stop,
defendant stated, “I’m serious now.” Defendant told the victim during
the telephone call to tell her mother that she had lied when she had
accused defendant because the victim was angry with him for having a
baby with another woman and therefore did not pay attention to the
victim.

     Defendant contends that the court failed to rule on the
sufficiency of his prima facie showing that the People’s exercise of a
peremptory challenge was racially motivated. That contention is
without merit inasmuch as “the sufficiency of the prima facie showing
becomes moot” after the People offer, as they did here, a race-neutral
explanation for the challenge (People v Baxter, 108 AD3d 1158, 1159
[internal quotation marks omitted]; see People v Hecker, 15 NY3d 625,
652). It is well established that the court’s ultimate determination
that there was no discriminatory intent is entitled to deference, and
we see no need to disturb that determination here (see People v
Newman, 71 AD3d 1509, 1509, lv denied 15 NY3d 754). We reject
defendant’s further contention that the court erred in granting the
People’s challenge for cause of a juror who provided an affirmative
indication that she would be uncomfortable judging another person (see
generally People v Johnson, 94 NY2d 600, 616). Defendant exhausted
his peremptory challenges and therefore preserved for our review his
contention that the court erred in denying his challenge for cause of
a prospective juror (see generally People v Thompson, 21 NY3d 555,
560). That prospective juror stated that she had a cousin who had
been sexually abused by her father and that she was “hypersensitive”
about the subject. She also stated that she had not yet heard any
                                 -3-                              388
                                                            KA 13-00959

information and was therefore not “leaning one way or the other.”
Following questioning by the court whether she could be fair and
unbiased, the prospective juror replied, “I believe I am. I’m a fair
person in general terms.” We conclude that, the juror’s “statements
here, taken in context and as a whole, were unequivocal” with respect
to her ability to be fair and impartial (People v Chambers, 97 NY2d
417, 419; see People v Odum, 67 AD3d 1465, 1465, lv denied 14 NY3d
804, reconsideration denied 15 NY3d 755, cert denied ___ US ___, 131 S
Ct 326).

     Defendant contends that he was denied effective assistance of
counsel based upon defense counsel’s failure to consult with or call a
medical expert to challenge the People’s expert regarding child abuse
accommodation syndrome. To the extent that defendant’s contention
involves matters that do not appear on the record, that contention
must be raised by way of a CPL article 440 motion. To the extent that
defendant’s contention may be reviewed, we conclude that it is without
merit. Defense counsel effectively cross-examined the People’s
expert, and his failure to call an expert witness does not constitute
ineffective assistance of counsel where, as here, “ ‘[d]efendant has
not demonstrated that such testimony was available, that it would have
assisted the jury in its determination or that he was prejudiced by
its absence’ ” (People v Kilbury, 83 AD3d 1579, 1580, lv denied 17
NY3d 860).

     The sentence is not unduly harsh or severe.




Entered:   March 27, 2015                          Frances E. Cafarell
                                                   Clerk of the Court
