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

497
KA 11-00482
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ADRIAN RILEY, DEFENDANT-APPELLANT.


JOHN A. HERBOWY, ROME, FOR DEFENDANT-APPELLANT.

ADRIAN RILEY, DEFENDANT-APPELLANT PRO SE.

JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (JACQUELYN M. ASNOE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Herkimer County Court (Patrick L.
Kirk, J.), rendered January 28, 2009. The judgment convicted
defendant, upon a jury verdict, of course of sexual conduct against a
child in the first degree.

     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 course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [a]). Contrary to defendant’s
contention, the evidence, viewed in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), is legally sufficient
to support the conviction. In addition, 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 conclude that the verdict is not
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495). Both the victim and defendant testified at trial,
and we perceive no basis in the record for disturbing the jurors’
credibility determinations (see People v Ennis, 107 AD3d 1617, 1618,
lv denied 22 NY3d 1040; People v Burgos, 90 AD3d 1670, 1671, lv denied
19 NY3d 862).

     By failing to object to County Court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his contention in his main
and pro se supplemental briefs that he was denied a fair trial based
on the ruling (see People v Tolliver, 93 AD3d 1150, 1151, lv denied 19
NY3d 968). In any event, we conclude that the court did not abuse its
discretion in allowing the prosecutor to question defendant about his
conviction of criminal possession of a weapon in the fourth degree
even though he committed that crime after the incident herein (see
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                                                         KA 11-00482

People v Pavao, 59 NY2d 282, 292 n 3; People v Davis, 243 AD2d 831,
833). That conviction demonstrated defendant’s “willingness to place
his own interests above those of society” (People v Hammond, 84 AD3d
1726, 1726-1727, lv denied 17 NY3d 816; see People v Cosby, 82 AD3d
63, 68, lv denied 16 NY3d 857).

     Defendant’s further contention in his main and pro se
supplemental briefs that he was denied a fair trial by prosecutorial
misconduct on summation is preserved for our review with respect to
only one instance of alleged misconduct (see CPL 470.05 [2]). In any
event, we conclude with respect to the unpreserved instances of
alleged misconduct that the prosecutor’s comments were fair response
to defense counsel’s summation (see People v McIver, 107 AD3d 1591,
1592, lv denied 22 NY3d 997; People v Roman, 85 AD3d 1630, 1632, lv
denied 17 NY3d 821). With respect to the preserved instance of
alleged misconduct, we agree with defendant that the prosecutor
improperly appealed to the jurors’ sympathies (see People v Fisher, 18
NY3d 964, 967; People v Ballerstein, 52 AD3d 1192, 1194), but we
conclude that the court’s prompt curative instruction was sufficient
to alleviate any prejudice to defendant (see People v Chatt, 77 AD3d
1285, 1287, lv denied 17 NY3d 793; People v Cooley, 50 AD3d 1548,
1549, lv denied 10 NY3d 957).

     Defendant contends in his main and pro se supplemental briefs
that he was denied effective assistance of counsel. Defendant’s
contentions regarding defense counsel’s failure to conduct a proper
investigation are based on information outside the record on appeal
and must be raised by way of a motion pursuant to CPL 440.10 (see
People v Russell, 83 AD3d 1463, 1465, lv denied 17 NY3d 800).
Contrary to defendant’s contention, he was not denied effective
assistance of counsel based on defense counsel’s failure to request a
bill of particulars (see People v Brink, 30 AD3d 1014, 1015, lv denied
7 NY3d 810), or failure to call an expert witness to testify (see
People v Aikey, 94 AD3d 1485, 1487, lv denied 19 NY3d 956; People v
Nelson, 94 AD3d 1426, 1426, lv denied 19 NY3d 999). We conclude on
the record before us that defendant received meaningful representation
(see generally People v Baldi, 54 NY2d 137, 147).

     Defendant contends in his pro se supplemental brief that the
court erred in refusing to dismiss the indictment on the ground that
the prosecutor allowed the victim to testify before the grand jury
without determining her testimonial capacity. Inasmuch as
“[d]efendant was convicted upon legally sufficient trial evidence, . .
. his contention with respect to the competency of the evidence before
the grand jury is not reviewable upon an appeal from the ensuing
judgment of conviction” (People v Pulvino, 115 AD3d 1220, 1221
[internal quotation marks omitted]; see People v Laws, 41 AD3d 1205,
1206, lv denied 9 NY3d 991). We reject defendant’s further contention
in his pro se supplemental brief that the court abused its discretion
in precluding defendant from cross-examining witnesses regarding other
allegations of sexual abuse made by the victim (see People v Lane, 47
AD3d 1125, 1127-1128, lv denied 10 NY3d 866; People v Smith, 281 AD2d
957, 958, lv denied 96 NY2d 868). “The preclusion of such questioning
                                 -3-                           497
                                                         KA 11-00482

does not constitute an abuse of discretion where, as here, defendant
made no showing that the prior allegation[s were] false” (Smith, 281
AD2d at 958).

     Finally, contrary to defendant’s contention in his main brief,
the sentence is not unduly harsh and severe.




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
