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

606
KA 09-00589
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

ROBERT BROWN, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ROBERT BROWN, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered January 29, 2009. The judgment convicted
defendant, upon a jury verdict, of sexual abuse 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, upon a
jury verdict, of sexual abuse in the first degree (Penal Law § 130.65
[1]), defendant challenges the legal sufficiency of the evidence to
support the conviction. Defendant failed to preserve his challenge
for our review, however, inasmuch as his motion for a trial order of
dismissal was not “ ‘specifically directed’ at” the same alleged
shortcoming in the evidence raised on appeal (People v Gray, 86 NY2d
10, 19). In any event, defendant’s contention lacks merit, inasmuch
as there is a “valid line of reasoning and permissible inferences” to
lead reasonable persons to the conclusion reached by the jury based on
the evidence presented at trial (People v Bleakley, 69 NY2d 490, 495).
Because we conclude that the evidence at trial is legally sufficient
to support the conviction, defendant’s further contention that the
evidence presented to the grand jury was legally insufficient is not
reviewable on appeal (see CPL 210.30 [6]; People v Prior, 23 AD3d
1076, 1076-1077, lv denied 6 NY3d 817). Furthermore, we reject
defendant’s contention that his trial counsel was ineffective for
failing to preserve his legal sufficiency challenge for our review.
“A defendant is not denied effective assistance of trial counsel
merely because counsel does not make a motion or argument that has
little or no chance of success” (People v Stultz, 2 NY3d 277, 287,
rearg denied 3 NY3d 702; see People v Bassett, 55 AD3d 1434, 1438, lv
denied 11 NY3d 922).
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                                                         KA 09-00589

     Defendant further contends that the verdict is against the weight
of the evidence and factually inconsistent because the jury acquitted
him of rape in the first degree under Penal Law § 130.35 (1) and found
him guilty of sexual abuse in the first degree. 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 that contention (see
generally Bleakley, 69 NY2d at 495). Specifically, the jury was
entitled to infer from the evidence at trial that defendant forcibly
committed an act of penis-to-vagina contact that qualified as sexual
contact (see § 130.00 [3]), but that stopped short of sexual
intercourse, i.e., “penetration,” required for rape (§ 130.00 [1]; see
§ 130.35). We thus conclude that defendant mistakenly relies on
People v Boykin (127 AD2d 1004, 1004, lv denied 69 NY2d 1001) and
People v Vicaretti (54 AD2d 236), in which there was no evidence at
trial from which such an inference could be drawn.

     Defendant failed to preserve for our review several of his
contentions concerning alleged acts of prosecutorial misconduct and,
in any event, “ ‘any alleged [prosecutorial] misconduct was not so
pervasive or egregious as to deprive defendant of a fair trial’ ”
(People v Szyzskowski, 89 AD3d 1501, 1503). Contrary to defendant’s
further contention, County Court did not err in permitting a witness
to testify that he and other men reported to the police that defendant
had “raped a female.” The testimony regarding that out-of-court
statement was not hearsay because it “was not received for its truth,
but [instead was received] for the legitimate, nonhearsay purpose of
completing the narrative of events and explaining police actions” in
subsequently tracking down defendant and the victim (People v Perez,
47 AD3d 409, 411, lv denied 10 NY3d 843). Defendant objected to the
admission of only a portion of the testimony and photographic evidence
related to his alleged assault of the victim’s boyfriend. Thus, his
contention that the testimony and evidence were irrelevant inasmuch as
charges pertaining to that assault had been dismissed prior to trial
is preserved for our review only in part (see CPL 470.05 [2]). To the
extent that defendant’s contention is preserved for our review, we
agree with him that the court abused its discretion in admitting that
testimony and evidence at trial (see generally People v Carroll, 95
NY2d 375, 385-387). Nevertheless, we conclude that any error in the
admission of the testimony and evidence is harmless (see generally
People v Crimmins, 36 NY2d 230, 241-242). Defendant failed to
preserve for our review his challenge to the testimony of two police
officers regarding out-of-court showup identifications made by the
victim and several other witnesses (see CPL 470.05 [2]), and we
decline to exercise our power to address that challenge as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Defendant failed to preserve for our review his contention that
the order of protection issued by the court does not comport with CPL
530.13 (see People v Nieves, 2 NY3d 310, 315-317), 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]).

     Contrary to defendant’s contention in his pro se supplemental
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                                                         KA 09-00589

brief, the court had subject matter jurisdiction over the charge of
sexual abuse in the first degree contained in the indictment.
Although the felony complaint, which preceded the indictment, did not
contain such a charge, the grand jury had the authority to consider
offenses other than “those designated in the felony complaint” (People
v Simmons, 178 AD2d 972, 972, lv denied 79 NY2d 1007). Defendant
failed to preserve for our review his further contention, raised in
his pro se supplemental brief, that the charge of sexual abuse in the
first degree set forth in the indictment was not adequately specific
(see People v Adams, 59 AD3d 928, 929, lv denied 12 NY3d 813; see also
People v Soto, 44 NY2d 683, 684). In any event, that contention lacks
merit. The indictment properly provided defendant with “fair notice
of the nature of the charge[] against him, and of the manner, time and
place of the conduct underlying the accusations, so as to enable him
to answer to the charge[] and to prepare an adequate defense” (People
v Keindl, 68 NY2d 410, 416, rearg denied 69 NY2d 823). Defendant also
failed to preserve for our review his additional contention in his pro
se supplemental brief that the counts charging him with rape in the
first degree and sexual abuse in the first degree were duplicitous
because they were premised upon the same facts and evidence (see
People v Becoats, 17 NY3d 643, 650, cert denied ___ US ___ [Apr. 23,
2012]). We note in any event that defendant’s contention is moot in
light of his acquittal of rape in the first degree (see People v
Haberer, 24 AD3d 1283, 1283, lv denied 7 NY3d 756, 848), and that it
also is without merit (see People v Scott, 12 AD3d 1144, 1145, lv
denied 4 NY3d 767).

     We have considered defendant’s remaining contentions and conclude
that they are without merit.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
