                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 21, 2016                     106280
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

VIVERTH PEART,
                    Appellant.
________________________________


Calendar Date:   May 24, 2016

Before:   Lahtinen, J.P., McCarthy, Garry and Mulvey, JJ.

                             __________


      James E. Long, Public Defender, Albany (Theresa M. Suozzi
of counsel), for appellant, and appellant pro se.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered November 1, 2012 in Albany County, upon a verdict
convicting defendant of the crimes of rape in the first degree
(two counts), rape in the third degree (two counts), attempted
criminal sexual act in the first degree, attempted criminal
sexual act in the third degree and endangering the welfare of a
child.

      Defendant allegedly subjected the victim, his stepdaughter,
to sexual touching for several years and forced her to engage in
sexual intercourse with him in September 2011 and November 2011
when she was 16 years old and he was 55 years old. About a week
after the November 2011 incident, she reported what had occurred
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to a family member who contacted police. An investigation ensued
and defendant was eventually indicted on two counts of rape in
the first degree, two counts of rape in the third degree,
attempted criminal sexual act in the first degree, attempted
criminal sexual act in the third degree and endangering the
welfare of a child. A jury found him guilty of all counts. He
was sentenced to consecutive prison terms of 20 years on the two
first-degree rape convictions together with various concurrent
sentences on the other convictions, as well as postrelease
supervision. Defendant appeals.

      Initially, defendant contends that his conviction was
against the weight of the evidence, pointing to a lack of
corroborating physical evidence or other proof supporting the
victim's version of events. Since a different verdict would not
have been unreasonable, we "must, like the trier of fact below,
weigh the relative probative force of conflicting testimony and
the relative strength of conflicting inferences that may be drawn
from the testimony" (People v Romero, 7 NY3d 633, 643 [2006]
[internal quotation marks and citations omitted]; see People v
Shofkom, 63 AD3d 1286, 1287 [2009], lv denied 13 NY3d 799 [2009],
appeal dismissed 13 NY3d 933 [2010]). In conducting this review,
"[g]reat deference is accorded to the fact-finder's opportunity
to view the witnesses, hear the testimony and observe demeanor"
(People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Scott,
47 AD3d 1016, 1017 [2008], lv denied 10 NY3d 870 [2008]).

      The victim testified at length regarding defendant's
conduct. She recalled that, when she was in sixth grade, he
started touching her thighs, breasts and vagina at various times
and places when alone with her. She had a poor relationship with
her mother, and her effort to talk to her mother about
defendant's conduct was unsuccessful. He encouraged her to have
sex before she got much older. In September 2011, she returned
home after smoking marihuana with her stepbrother, took a shower
and, as she exited the bathroom clothed only in a towel,
defendant led her by the wrist to a bedroom. He placed her on a
bed and she then felt his penis push against her vagina. This
caused her to jump back and she left the room. She testified
that, in November 2011, she had sex with her boyfriend for the
first time and he then left at about 10:00 p.m. Approximately an
                              -3-                106280

hour later, defendant came into her room, began performing oral
sex upon her and then inserted his penis into her vagina.

      Videos of police interviews with defendant were shown to
the jury. He denied engaging in sexual intercourse with the
victim. He claimed that she offered him sex if he bought her a
new cell phone and that, after he purchased her a phone, she came
into his bedroom wearing only a towel and lied down on his bed.
Although he acknowledged picking up her legs and looking at her,
he claimed that he then walked away. Bedding from the victim's
room obtained via a search warrant revealed blood stains but no
seminal fluid. A forensic scientist testified that the samples
matched the victim and revealed at least two male donors, but the
samples were not sufficient for comparison to a specific male.
The veracity of the victim's testimony was a key issue at trial
and defendant urged the jury to consider the victim's
inconsistencies, her possible motives to lie and the lack of
corroborating proof. According due deference to the credibility
determinations made by the jury and viewing the evidence in a
neutral light, the jury's verdict is supported by the weight of
the credible evidence (see People v Fernandez, 106 AD3d 1281,
1285-1286 [2013]; People v Wyre, 97 AD3d 976, 978 [2012], lv
denied 19 NY3d 1030 [2012]; People v Stearns, 72 AD3d 1214, 1216
[2010], lv denied 15 NY3d 778 [2010]).

      Defendant asserts a violation of Molineux in that the
victim was permitted to testify on re-direct that defendant had
previously given her marihuana. During cross-examination of the
victim, defendant asked her a series of questions attempting to
establish a motive for her to lie about defendant, including
whether he had disapproved and confronted her about using
marihuana. The victim's brief testimony on re-direct that
defendant had provided her with marihuana clarified the
misleading perception created by defendant's cross-examination
(see People v Rojas, 97 NY2d 32, 37-38 [2001]; People v DeCarr,
130 AD3d 1365, 1366-1367 [2015], lv denied, 26 NY3d 1008 [2015]),
and Supreme Court interjected an appropriate limiting instruction
(see People v Small, 12 NY3d 732, 733 [2009]). Under such
circumstances, we are unpersuaded that reversible error resulted
from this testimony.
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      Review of the record reveals that defendant received
meaningful representation (see People v Caban, 5 NY3d 143, 152
[2005]) and, thus, his contention in his pro se supplemental
brief that he was deprived of the effective assistance of counsel
is unavailing. "The failings to which defendant points as
suggestive of ineffectiveness have either no merit, were trial
tactics which have a legitimate explanation or deal with matters
outside the record, which should be pursued in a postverdict
motion pursuant to CPL article 440" (People v Brennan, 290 AD2d
574, 576 [2002] [internal citations omitted], lv denied 97 NY2d
751 [2002]; see People v Cruz, 53 AD3d 986, 986 [2008]).

      The sentence is not harsh or excessive. "Where, as here,
the sentence falls within the permissible statutory range, 'we
will not disturb it unless we find that the sentencing court
abused its discretion or extraordinary circumstances exist
warranting a modification'" (People v Lancaster, 121 AD3d 1301,
1304 [2014], lv denied 24 NY3d 1121 [2015], quoting People v
Cruz, 53 AD3d at 986). "The mere fact that a sentence imposed
after trial is greater than that offered in connection with plea
negotiations is not proof positive that defendant was punished
for asserting his right to trial" (People v Beauharnois, 64 AD3d
996, 1001 [2009] [internal quotation marks, brackets and
citations omitted], lv denied 13 NY3d 834 [2009]). Supreme Court
gave less than the maximum allowable sentence and, although
defendant did not have a criminal record, given the nature of the
crimes committed against a young person in his trust and care, we
find no abuse of discretion or extraordinary circumstances
warranting a reduction in the interest of justice (see People v
Hughes, 114 AD3d 1021, 1025 [2014], lv denied 23 NY3d 1038
[2014]; People v Warner, 110 AD3d 1339, 1340-1341 [2013], lv
denied 22 NY3d 1091 [2014]). The remaining arguments lack merit.

     McCarthy, Garry and Mulvey, JJ., concur.
                        -5-                  106280

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
