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

758
KA 12-00533
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ORVIS WARD, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO, FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Spencer J.
Ludington, A.J.), rendered June 28, 2011. The judgment convicted
defendant, upon a jury verdict, of rape in the second degree, criminal
sexual act in the second degree, sexual abuse in the first degree,
sexual abuse in the second degree and endangering the welfare of a
child.

     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 second degree (Penal Law § 130.30
[1]), criminal sexual act in the second degree (§ 130.45 [1]), sexual
abuse in the first degree (§ 130.65 [2]), sexual abuse in the second
degree (§ 130.60 [2]), and endangering the welfare of a child (§
260.10 [1]). Defendant contends that County Court erred in denying
his motion to preclude the People from presenting his statement to the
police in evidence at trial because it constituted prior bad act
evidence offered solely to establish his propensity to commit sexual
crimes. We reject that contention. “In a criminal prosecution, any
act or declaration of the accused inconsistent with innocence is
admissible as an admission” (Prince, Richardson on Evidence § 8-204
[Farrell 11th ed]; see People v Jackson, 29 AD3d 409, 411-412, affd 8
NY3d 869; People v Caban, 5 NY3d 143, 151 n; People v Howard, 101 AD3d
1749, 1751). Here, defendant’s statement was properly admitted in
evidence because it contained admissions concerning the crimes charged
in the indictment (see Jackson, 29 AD3d at 411-412; People v Knox, 232
AD2d 811, 812, lv denied 89 NY2d 943; People v Ragin, 224 AD2d 642,
642, lv denied 88 NY2d 883). We reject the further contention of
defendant that the admission of his statement in evidence rendered the
second, fourth, and seventh counts of the indictment duplicitous (see
People v Ramirez, 99 AD3d 1241, 1242, lv denied 20 NY3d 988; People v
Casado, 99 AD3d 1208, 1210, lv denied 20 NY3d 985).
                                 -2-                           758
                                                         KA 12-00533

     We conclude that, contrary to the contention of defendant, the
court did not abuse its discretion in denying his motion for a
mistrial based upon the misconduct of two prosecution witnesses (see
People v Ortiz, 54 NY2d 288, 292; People v Robinson, 309 AD2d 1228,
1229, lv denied 1 NY3d 579). Upon the motion of a defendant, the
court “must declare a mistrial and order a new trial of the indictment
. . . when there occurs during the trial an error or legal defect in
the proceedings, or conduct inside or outside the courtroom, which is
prejudicial to the defendant and deprives him [or her] of a fair
trial” (CPL 280.10 [1]). Here, the record establishes that defendant
was neither prejudiced nor deprived of a fair trial by the misconduct
of the witnesses (see People v Donald, 6 AD3d 1177, 1177, lv denied 3
NY3d 639; see generally CPL 280.10 [1]; Ortiz, 54 NY2d at 292;
Robinson, 309 AD2d at 1229). Defendant failed to preserve for our
review his contention with respect to the court’s curative instruction
concerning the misconduct of the witnesses or his contention that the
court should have permitted defense counsel to elicit hearsay
testimony from a witness on the subject of the misconduct, and we
decline to exercise our power to reach those contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Defendant likewise failed to preserve for our review his
contention that he was denied a fair trial by prosecutorial misconduct
during summation inasmuch as he failed to object to the two challenged
comments (see People v Madera, 103 AD3d 1197, 1199; People v Foster,
101 AD3d 1668, 1670, lv denied 20 NY3d 1098; People v Wright, 85 AD3d
1642, 1643, lv denied 17 NY3d 863). In any event, the prosecutor’s
characterization of defendant’s statement was a fair response to
defense counsel’s summation and/or a fair comment on the evidence (see
People v Goupil, 104 AD3d 1215, 1216). Although the prosecutor’s
characterization of the trial as a “search for the truth” was indeed
improper (see People v Maye, 206 AD2d 846, 846; People v Smith, 184
AD2d 326, 326, lv denied 80 NY2d 910), we conclude that the
prosecutor’s “single improper comment was not so egregious that
defendant was thereby deprived of a fair trial” (People v Willson, 272
AD2d 959, 960, lv denied 95 NY2d 873; see Smith, 184 AD2d at 326).
Nor can it be said that defendant received ineffective assistance of
counsel due to the failure of defense counsel to object to that single
improper remark (see People v Wiley, 104 AD3d 1314, 1314; People v
Tolliver, 93 AD3d 1150, 1151, lv denied 19 NY3d 968). Rather, defense
counsel provided defendant with meaningful representation throughout
the proceedings (see generally People v Baldi, 54 NY2d 137, 147).

     Finally, the sentence is not unduly harsh or severe, particularly
in light of the severity of the crimes and their impact on the victim.




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
