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

110
KA 11-01915
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DANIEL A. LUDWIG, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (James J.
Piampiano, J.), rendered September 16, 2011. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child.

     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 predatory sexual assault against a child (Penal Law §
130.96), defendant contends that he was denied a fair trial by the
prosecutor’s references during her opening statement to prior
consistent statements of the victim and by the prosecutor’s bolstering
of the victim’s credibility through the elicitation of those prior
consistent statements from five witnesses. Defendant’s contention is
preserved for our review only with respect to the testimony of two of
those witnesses (see CPL 470.05 [2]). In any event, it is without
merit. Two of the witnesses at issue were caseworkers who did not
give any testimony regarding the victim’s disclosures, and their
testimony regarding her demeanor when they raised the abuse
allegations with her was not improperly admitted (see People v
Shepherd, 83 AD3d 1298, 1300, lv denied 17 NY3d 809). We conclude
that the testimony of the remaining witnesses at issue, including the
victim, did not constitute improper bolstering inasmuch as the
evidence was not admitted for its truth (see People v Rosario, 100
AD3d 660, 661; People v Burgos, 90 AD3d 1670, 1671-1672, lv denied 19
NY3d 862). Rather, the evidence was admitted to explain how the
victim eventually disclosed the abuse and how the investigation
started (see People v Galloway, 93 AD3d 1069, 1072, lv denied 19 NY3d
996; People v Gregory, 78 AD3d 1246, 1246-1247, lv denied 16 NY3d 831;
People v Rich, 78 AD3d 1200, 1202, lv denied 17 NY3d 799). Inasmuch
as the testimony from the relevant witnesses was proper, defendant’s
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                                                         KA 11-01915

further contention that he was denied effective assistance of counsel
based on defense counsel’s failure to object to the testimony
regarding the victim’s prior consistent statements and the
prosecutor’s opening statement is without merit (see People v
Bernardez, 85 AD3d 936, 938, lv denied 17 NY3d 857; see also People v
Hyatt, 2 AD3d 749, 749-750, lv denied 1 NY3d 629).

     Defendant also contends that County Court erred in precluding his
mother from testifying about a prior inconsistent statement of the
victim, i.e., that she heard the victim say that she would only
disclose what her mother told her to disclose (inconsistent statement
testimony). To the extent that defendant contends that the preclusion
of the inconsistent statement testimony denied him his constitutional
right to present a defense, that contention is not preserved for our
review (see People v Lane, 7 NY3d 888, 889; People v Castor, 99 AD3d
1177, 1181; People v Metellus, 54 AD3d 601, 602, lv denied 11 NY3d
899). To the extent that defendant contends that the inconsistent
statement testimony was admissible to impeach the victim’s credibility
and to establish that the victim had a reason to fabricate the
allegations against defendant, that contention is also not preserved
for our review (People v Marthone, 281 AD2d 562, 562, lv denied 96
NY2d 904). When the People objected to the inconsistent statement
testimony on hearsay grounds, defense counsel was unable to articulate
an exception to the hearsay rule (see generally People v Lyons, 81
NY2d 753, 754). We decline to exercise our power to review the
contentions regarding the inconsistent statement testimony as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
“[N]othing in the record suggests that the victim was ‘so unworthy of
belief as to be incredible as a matter of law’ or otherwise tends to
establish defendant’s innocence of [the] crime[] . . . , and thus it
cannot be said that the jury failed to give the evidence the weight it
should be accorded” (People v Woods, 26 AD3d 818, 819, lv denied 7
NY3d 765).

     Defendant failed to preserve for our review his further
contention that the sentence of 16 years to life imprisonment
constitutes cruel and unusual punishment inasmuch as the maximum
sentence for a crime with identical elements, i.e., course of sexual
conduct against a child in the first degree (Penal Law § 130.75 [1]
[b]), is 25 years (see People v Verbitsky, 90 AD3d 1516, 1516, lv
denied 19 NY3d 868; People v Wright, 85 AD3d 1642, 1644, lv denied 17
NY3d 863). In any event, we reject that contention (see People v
Holmquist, 5 AD3d 1041, 1041-1042, lv denied 2 NY3d 800; see generally
People v Thompson, 83 NY2d 477, 479-480; People v Lawrence, 81 AD3d
1326, 1326-1327, lv denied 17 NY3d 797), as well as his contention
that the sentence is unduly harsh or severe. Finally, defendant did
not object to the order of protection at sentencing and thus failed to
preserve for our review his contention that the court failed to comply
with CPL 530.12 (5) by not stating its reasons for issuing the order
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                                                        KA 11-01915

of protection (see People v Kulyeshie, 71 AD3d 1478, 1479, lv denied
14 NY3d 889). 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]).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
