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

247
KA 12-01252
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

COREY T. KIMMY, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (ANDREW M. MOLITOR OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered March 26, 2012. The judgment convicted defendant,
upon a jury verdict, of attempted kidnapping in the second degree.

     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 attempted kidnapping in the second degree (Penal Law
§§ 110.00, 135.20), defendant contends that he was deprived of his
right to present a defense when, during defense counsel’s summation,
County Court instructed the jury to disregard a comment made by
defense counsel that was central to the defense. Defendant failed to
preserve that contention for our review (see CPL 470.05 [2]). In any
event, we conclude that any error in the court’s instruction is
harmless inasmuch as the court immediately thereafter “permitted
defendant to make the same point, expressed in different language”
(People v Vasquez, 288 AD2d 17, 17, lv denied 97 NY2d 734).

     We also reject defendant’s related contention that he was
deprived of his right to present a defense when, during cross-
examination of a prosecution witness, the court precluded defense
counsel from referring to the initial police description of the
incident as an assault or an attempted assault, as opposed to an
attempted kidnapping. The initial description of the incident was
given before defendant was arrested and police investigation was
complete and thus was irrelevant to the issues to be determined by the
jury. Defense counsel was not otherwise prevented from asserting that
defendant committed nothing more than a mere assault. Indeed, that
argument was made repeatedly at trial by defense counsel.

     Defendant failed to preserve for our review his contention that
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                                                         KA 12-01252

the evidence is legally insufficient to establish that he attempted to
kidnap the victim inasmuch as his motion for a trial order of
dismissal was not directed at that alleged defect in the proof (see
generally People v Gray, 86 NY2d 10, 19). In any event, we reject
that contention. The evidence at trial established that defendant
left his vehicle running in the middle of the street, with the door
open, and grabbed and assaulted the 13-year-old victim in a sexual
manner as she tried to ride her bicycle around him. Although
defendant, who had been seen “cruising” the neighborhood at the same
time of day in the two weeks prior to the crime, ran away when the
victim resisted and yelled for help, he later gave a statement to
police that he intended to “take” the victim “depending on how she
reacted” to his assault. Viewing the evidence in the light most
favorable to the People, as we must (see People v Contes, 60 NY2d 620,
621), we conclude that there is a valid line of reasoning and
permissible inferences that could lead a rational person to the
conclusion reached by the jury based on the evidence at trial, i.e.,
that defendant attempted to kidnap the victim (see generally People v
Bleakley, 69 NY2d 490, 495). We further conclude that the verdict is
not against the weight of the evidence (see generally id.). 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 it
cannot be said that the jury failed to give the evidence the weight it
should be accorded (see generally People v Ohse, 114 AD3d 1285, 1286-
1287, lv denied 23 NY3d 1041).

     We have reviewed defendant’s remaining contentions and conclude
that none requires reversal or modification of the judgment.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
