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

755
KA 08-01549
PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BURGESS MATTHEWS, JR., DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ERIC M. DOLAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered April 4, 2008. The judgment convicted
defendant, upon a jury verdict, of course of sexual conduct against a
child in the first degree, endangering the welfare of a child and rape
in the third degree.

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed sentence on the conviction of course of sexual conduct
against a child in the first degree is unanimously dismissed and the
judgment is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of course of sexual conduct against
a child in the first degree (Penal Law § 130.75 [1] [a]), endangering
the welfare of a child (§ 260.10 [1]) and rape in the third degree
(§ 130.25 [2]). In appeal No. 2, defendant appeals from a resentence
involving the conviction of course of sexual conduct against a child.
We note at the outset that, inasmuch as the sentence on that
conviction in appeal No. 1 was superseded by the resentence in appeal
No. 2, the appeal from the judgment in appeal No. 1 insofar as it
imposed sentence on that conviction must be dismissed (see People v
Weathington [appeal No. 2], 141 AD3d 1173, 1173). Defendant raises no
contention with respect to the resentence in appeal No. 2, however,
and we therefore dismiss the appeal therefrom (see People v Drake, 138
AD3d 1396, 1396).

     We reject defendant’s contention that County Court erred in
admitting in evidence photographs depicting the victim at ages 10, 13
and 15. The photographs were relevant to illustrate the victim’s age
at the time the crimes occurred (see People v Khan, 88 AD3d 1014,
1015, lv denied 18 NY3d 884). In any event, inasmuch as there was
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                                                         KA 08-01549

overwhelming evidence of defendant’s guilt and no significant
probability that the jury would have otherwise acquitted him, we
conclude that, “[e]ven if the court erred in admitting the
photographs, the error [is] harmless” (People v Murray, 140 AD2d 949,
950, lv denied 72 NY2d 960; see People v Marra, 96 AD3d 1623, 1626,
affd 21 NY3d 979).

     We reject defendant’s contention that defense counsel should have
been permitted to withdraw from representing defendant, inasmuch as
defense counsel never sought permission to withdraw. There is no
merit to defendant’s further contention that the court erred in
failing to inquire into his request for substitution of counsel.
Defendant’s nonspecific complaint that defense counsel had been
dishonest with him did not constitute a request for substitution of
counsel and thus “did not trigger the need for an inquiry into whether
good cause existed for substitution” (People v Mitchell, 129 AD3d
1319, 1321, lv denied 26 NY3d 1041).

     The court properly exercised its discretion in granting the
People’s Molineux application, inasmuch as the evidence that the
People proposed to introduce at trial had substantial probative value
with respect to issues other than criminal propensity, and the
probative value of the evidence outweighed the danger of undue
prejudice to defendant (see People v Cass, 18 NY3d 553, 560). The
evidence of uncharged acts of physical and sexual abuse against the
victim was relevant to complete the narrative and provide background
information (see People v Dorm, 12 NY3d 16, 19; People v Washington,
122 AD3d 1406, 1408, lv denied 25 NY3d 1173). In addition, evidence
concerning defendant’s violent and threatening behavior was relevant
to explain the victim’s delay in disclosing the crimes charged,
irrespective of whether the violence was directed against her (see
People v Justice, 99 AD3d 1213, 1215, lv denied 20 NY3d 1012; People v
Workman, 56 AD3d 1155, 1156-1157, lv denied 12 NY3d 789) or her
siblings (see People v Rivers, 82 AD3d 1623, 1623, lv denied 17 NY3d
904; People v Bassett, 55 AD3d 1434, 1436, lv denied 11 NY3d 922).
The court provided extensive and repeated limiting instructions with
respect to the Molineux evidence that minimized the prejudice to
defendant (see Washington, 122 AD3d at 1408; Rivers, 82 AD3d at 1623;
cf. People v Westerling, 48 AD3d 965, 968).

     The court also properly exercised its discretion in admitting
evidence concerning defendant’s suicide attempt, including the suicide
note, as relevant to his consciousness of guilt (see People v Smith,
191 AD2d 284, 284-285, lv denied 81 NY2d 1020). Defendant failed to
preserve for our review his contention that the prosecutor engaged in
misconduct on summation by vouching for the credibility of a
prosecution witness (see People v Mull, 89 AD3d 1445, 1446, lv denied
19 NY3d 965), 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, even assuming, arguendo, that the
prosecutor “improperly appealed to the sympathy of the jury” by
displaying the victim’s photographs during the graphic description of
her victimization on summation (People v Presha, 83 AD3d 1406, 1408),
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                                                         KA 08-01549

we conclude that the prosecutor’s isolated conduct was not so
egregious as to deprive defendant of a fair trial (see People v Lyon,
77 AD3d 1338, 1339, lv denied 15 NY3d 954).




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
