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

130
KA 09-01581
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENNETH MARTINEZ, JR., 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 Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered June 1, 2009. The judgment
convicted defendant, upon a jury verdict, of rape in the first degree,
rape in the second degree and endangering the welfare of a child (two
counts).

     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 rape in the first degree (Penal Law § 130.35
[1]), rape in the second degree (§ 130.30 [1]), and two counts of
endangering the welfare of a child (§ 260.10 [1]). Defendant failed
to preserve for our review his contention that he was denied a fair
trial by prosecutorial misconduct on summation (see People v Stanley,
108 AD3d 1129, 1131, lv denied 22 NY3d 959). In any event, his
contention is without merit. In explaining what the victim had to go
through after disclosing the abuse, the prosecutor stated that the
victim had spoken with different agencies after she made her initial
disclosure, she underwent a genital exam, and she appeared before the
grand jury and at trial. Contrary to defendant’s contention, the
prosecutor did not state that the victim had made prior statements
that were consistent with her trial testimony. Moreover, the
prosecutor’s remarks were a fair response to defense counsel’s theory
that the victim had fabricated the allegations (see generally People v
Santana, 55 AD3d 1338, 1339, lv denied 12 NY3d 762). Next, the
prosecutor’s remark about defense counsel’s probable response if the
victim had been crying on the witness stand was also a fair response
to defense counsel’s remarks on summation, in which he was critical of
the victim’s lack of affect when testifying (see generally People v
Spivey, 305 AD2d 135, 135, lv denied 100 NY2d 587). The prosecutor’s
remarks that there was “no custody battle” and that the victim did not
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                                                         KA 09-01581

have a previous genital examination were fair comment on the evidence
(see generally People v McCauley, 19 AD3d 1130, 1131, lv denied 5 NY3d
808).

      We reject defendant’s contention that he was denied effective
assistance of counsel. To the extent that defendant contends that
defense counsel was ineffective for failing to object to the
prosecutor’s remarks during summation, that contention is without
merit inasmuch as the prosecutor’s comments did not constitute
prosecutorial misconduct (see People v Hill, 82 AD3d 1715, 1716, lv
denied 17 NY3d 806). We further conclude that defendant failed to
show that an objection to the testimony of the medical expert would
have been successful (see generally People v Stultz, 2 NY3d 277, 287,
rearg denied 3 NY3d 702). Viewing the evidence, the law, and the
circumstances of this case in totality and at the time of
representation, we conclude that defendant received effective
assistance of counsel (see generally People v Baldi, 54 NY2d 137,
147).

     Viewing the evidence in light of the elements of the crimes 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).
Defendant’s contention that the order of protection should be modified
to take into account jail time credit is not preserved for our review
(see People v Hoyt, 107 AD3d 1426, 1426, lv denied 21 NY3d 1042; see
generally People v Nieves, 2 NY3d 310, 315-317). In any event, that
contention is without merit inasmuch as the expiration date of the
order of protection could have been significantly longer if Supreme
Court had included the period of postrelease supervision when
calculating the maximum expiration date of the “determinate sentence
of imprisonment actually imposed” (CPL former 530.12 [5] [ii]), as it
could have (see People v Williams, 19 NY3d 100, 103-104).




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
