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

1334
KA 10-00232
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK A. WESTBROOKS, DEFENDANT-APPELLANT.


JAMES E. NEUMAN, NEW YORK CITY, FOR DEFENDANT-APPELLANT.

LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE (JOHN A. CIRANDO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Lewis County Court (Charles C.
Merrell, J.), rendered December 4, 2009. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of rape in the first degree (Penal Law § 130.35 [1]),
defendant contends that the verdict is against the weight of the
evidence. We reject that contention. This case turned largely upon
the credibility of the victim, and it is well settled that
“[r]esolution of issues of credibility, as well as the weight to be
accorded to the evidence presented, are primarily questions to be
determined by the jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv
denied 13 NY3d 942 [internal quotation marks omitted]; see People v
Erle, 83 AD3d 1442, lv denied 17 NY3d 794). Although there were
various inconsistencies in the victim’s trial testimony, it cannot be
said that her testimony was “manifestly untrue, physically impossible,
contrary to experience, or self-contradictory” (People v Harris, 56
AD3d 1267, 1268, lv denied 11 NY3d 925; see People v Moore [appeal No.
2], 78 AD3d 1658, 1659-1660). Furthermore, we note that the People
introduced evidence establishing that defendant fled to Ohio after the
victim contacted the police, and such evidence of defendant’s flight
was admissible as circumstantial evidence of his consciousness of
guilt (see People v Zuhlke, 67 AD3d 1341, lv denied 14 NY3d 774).

     We reject defendant’s further contention that County Court erred
in allowing the People during their direct case to elicit testimony
that defendant slapped the victim while they were arguing two days
before the rape occurred. Evidence of a defendant’s prior abusive or
controlling behavior toward a victim is “ ‘admissible for the purpose
of establishing the element of forcible compulsion and the victim’s
                                 -2-                         1334
                                                        KA 10-00232

delayed reporting’ ” (People v King, 56 AD3d 1193, 1194, lv denied 11
NY3d 926). That principle applies even where, as here, “the defense
is not consensual sex, but that the rape never occurred and that the
[victim’s] allegation was a lie” (People v Cook, 93 NY2d 840, 841).
Defendant failed to preserve for our review his contention that the
court erred in failing to give a limiting instruction with regard to
that evidence (see People v Wright, 5 AD3d 873, 876, lv denied 3 NY3d
651), as well as his contention that the court erred in admitting
evidence that he was absent without leave from the United States Army
following the rape (see CPL 470.05 [2]). We decline to exercise our
power to review those contentions as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     Finally, defendant contends that he was deprived of a fair trial
by alleged prosecutorial misconduct on summation. Defendant did not
object to most of the alleged improper comments and thus failed to
preserve his contention for our review with respect to those comments
(see CPL 470.05 [2]). In any event, we conclude that “[t]he claimed
instances of prosecutorial misconduct were not so egregious that
defendant was deprived of a fair trial” (People v Plant, 138 AD2d 968,
lv denied 71 NY2d 1031).




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
