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

447
KA 12-02292
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PARISH M. STREETER, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

PARISH M. STREETER, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered September 10, 2012. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child (two counts), sexual abuse in the second degree, criminal sexual
act in the second degree, attempted coercion in the first degree and
criminal contempt in the second 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 two counts of predatory sexual assault
against a child (Penal Law § 130.96), sexual abuse in the second
degree (§ 130.60 [2]), criminal sexual act in the second degree (§
130.45 [1]), attempted coercion in the first degree (§§ 110.00, 135.65
[1]), and criminal contempt in the second degree (§ 215.50 [3]). The
charges for the sexual crimes arose from allegations that defendant
touched the complainant’s vagina with his fingers and then, on three
separate occasions, had oral contact with her vagina. The sexual
contact took place when the victim was 12 and 13 years old.

     We reject defendant’s contention that the evidence is legally
insufficient to support the conviction. The absence of scientific or
medical evidence corroborating the complainant’s testimony, as noted
by defendant, is not dispositive, particularly where, as here there
was no penetration, defendant did not ejaculate, and the crimes were
not immediately reported to the police. Indeed, this case turned
largely upon the credibility of the complainant and defendant, who
testified in his own defense and denied the allegations. The jury
credited the testimony of the complainant and, contrary to defendant’s
                                 -2-                           447
                                                         KA 12-02292

contention, her testimony was not “incredible as a matter of law,”
i.e., “manifestly untrue, physically impossible, contrary to
experience, or self-contradictory” (People v Ponzo, 111 AD3d 1347,
1348 [internal quotation marks omitted]; see People v Bush, 107 AD3d
1581, 1582, lv denied 22 NY3d 954). Viewing the evidence in the light
most favorable to the People (see People v Contes, 60 NY2d 620, 621),
we conclude that “ ‘there is a valid line of reasoning and permissible
inferences from which a rational jury could have found the elements of
the crime[s] proved beyond a reasonable doubt’ ” (People v Danielson,
9 NY3d 342, 349; 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 (see Danielson, 9 NY3d at 349), we
reject defendant’s further contention that the verdict is against the
weight of the evidence (see generally Bleakley, 69 NY2d at 495). In
support of his weight of the evidence contention, defendant asserts
that his alibi witnesses, all of whom have felony records, were more
credible than the People’s witnesses. Where, as here, “ ‘witness
credibility is of paramount importance to the determination of guilt
or innocence,’ ” we must give great deference to the jury, given its
opportunity to view the witnesses and observe their demeanor (People v
Scott, 107 AD3d 1635, 1636, lv denied 21 NY3d 1077; see People v
Roman, 107 AD3d 1441, 1442-1443, lv denied 21 NY3d 1045; People v
Allen, 93 AD3d 1144, 1147, lv denied 19 NY3d 956). We perceive no
basis in the record for us to substitute our credibility
determinations for those of the jury.

     Defendant next contends that County Court erred in allowing the
People to call a rebuttal witness who was present in court when
defendant testified. Because the court did not issue a sequestration
order, however, there was no basis to preclude the rebuttal witness
from taking the stand. Moreover, it cannot be said that the court
abused its discretion in failing “to exclude witnesses from the
courtroom while other witnesses are testifying” (People v Santana, 80
NY2d 92, 100; see People v Baker, 14 NY3d 266, 274).

     Defendant contends in his pro se supplemental brief that he was
deprived of effective assistance of counsel because, among other
reasons, his attorney failed to call witnesses at trial who could have
provided testimony that was helpful to him. That contention is based
primarily on matters outside the record and must be raised pursuant to
a CPL 440.10 motion (see People v Rivera, 71 NY2d 705, 709; People v
Merritt, 115 AD3d 1250, 1251). We have reviewed defendant’s remaining
contentions in his main and pro se supplemental briefs and conclude
that they lack merit.




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
