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

469
KA 14-01510
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CURTIS BROWN, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered April 14, 2014. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the second
degree (three counts), sexual abuse in the second degree (three
counts) 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
after a jury trial of, inter alia, three counts of criminal sexual act
in the second degree (Penal Law § 130.45 [1]). The charges stemmed
from defendant’s sexual abuse of his daughter. 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). 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]). Contrary to
defendant’s contention, the trial testimony of the victim “was not so
inconsistent or unbelievable as to render it incredible as a matter of
law” (People v Black, 38 AD3d 1283, 1285, lv denied 8 NY3d 982), and
we see no basis for disturbing the jury’s credibility determinations
in this case.

     Defendant further contends that testimony on the People’s direct
case regarding certain answers he provided during a police interview
constituted improper evidence of selective silence. We reject that
contention inasmuch as the testimony established that defendant did
not remain silent in response to police questioning (cf. People v
Williams, 25 NY3d 185, 193; People v Capers, 94 AD3d 1475, 1476, lv
                                 -2-                           469
                                                         KA 14-01510

denied 19 NY3d 971). Defendant’s contention that the People
improperly bolstered the victim’s testimony by introducing evidence of
her delayed disclosures of defendant’s actions is not preserved for
our review inasmuch as defendant did not object to that evidence at
trial (see CPL 470.05 [2]; People v Comerford, 70 AD3d 1305, 1306),
and we decline to exercise our power to review that contention as a
matter of discretion in the interest of justice (see CPL
470.15 [6] [a]).

      We reject defendant’s further contention that he was denied
effective assistance of counsel. Viewing the evidence, the law, and
the circumstances of this case, in totality and as of the time of the
representation, we conclude that defendant’s attorney provided
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).

     Finally, defendant contends that the People failed to comply with
the requirements of CPL 400.15 in sentencing him as a second violent
felony offender and thus, that the sentence is illegal. We conclude
that defendant’s contention, which is actually a challenge to the
adequacy of the procedures that County Court used in sentencing him
rather than to the legality of the sentence, is not preserved for our
review (see People v Butler, 96 AD3d 1367, 1368, lv denied 20 NY3d
931; cf. People v Samms, 95 NY2d 52, 58). In any event, the record
establishes that, prior to sentencing, both defendant and defense
counsel received and signed a copy of the second felony offender
statement and, at sentencing, the court asked defendant whether there
was “[a]nything . . . you want to say before I pronounce sentence.”
We therefore conclude that “there was substantial compliance with CPL
400.15 in this case . . . inasmuch as both defendant and defense
counsel ‘received adequate notice and an opportunity to be heard with
respect to the prior conviction’ ” (People v Myers, 52 AD3d 1229,
1230; see People v Hall, 82 AD3d 1619, 1620, lv denied 16 NY3d 895).




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
