People v. Chrisley

• Decision Date: 27 March 2015
• Docket Number: 323 KA 13-01948
• Parties: The PEOPLE of the State of New York, Respondent, v. John R. CHRISLEY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1495
8 N.Y.S.3d 511
2015 N.Y. Slip Op. 02614

The PEOPLE of the State of New York, Respondent
v.
John R. CHRISLEY, Defendant–Appellant.

323 KA 13-01948

Supreme Court, Appellate Division, Fourth Department, New York.

March 27, 2015.

8 N.Y.S.3d 511

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant.

John R. Chrisley, Defendant–Appellant Pro Se.

Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.

Opinion

MEMORANDUM:

126 A.D.3d 1495

On appeal from a judgment convicting him following a jury trial of, inter alia, two counts of sexual abuse in the first degree (Penal Law § 130.65[3] ), defendant contends in his main brief that County Court abused its discretion in allowing the People to present evidence that, on a date prior to the incidents charged in the indictment, he had a wet spot on the crotch area of his pants after the then four-year-old victim had been sitting on his lap. We reject that contention. “Evidence of uncharged crimes may be admissible if it is

8 N.Y.S.3d 512

relevant to establish some element of the crime under consideration or if it falls within one of the recognized exceptions to the general rule precluding such evidence, i.e., it is relevant to demonstrate motive, intent, absence of mistake or accident, a common scheme or plan, or the identity of defendant” (People v. Ray, 63 A.D.3d 1705, 1706, 880 N.Y.S.2d 837, lv. denied 13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969 ; see People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59 ; People v. Molineux, 168 N.Y. 264, 293–294, 61 N.E. 286 ), provided that “its probative value exceeds the potential for prejudice resulting to the defendant” (People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808 ). Here, the Molineux evidence admitted by the court was relevant to the issue of intent, i.e., whether defendant's subsequent touching of the victim's intimate parts was for the purpose of gratifying his sexual desire. Moreover, given that defendant suggested to the police that his touching of the victim was inadvertent, the evidence was relevant to establish the absence of mistake. We further conclude that “the probative value of the evidence was not outweighed by its prejudicial effect, and the court's limiting instruction minimized any prejudice to defendant” (People v. Washington, 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194 ).

Defendant failed to preserve for our review his further contention in his main and pro se supplemental briefs that he was deprived of a fair trial by prosecutorial misconduct on summation (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ). In any event, most of the comments complained of

126 A.D.3d 1496

by defendant were proper, and any improper comments were not so pervasive or egregious as to deprive defendant of a...