People v. Fisher

• Citation: 78 A.D.3d 1605,910 N.Y.S.2d 621
• Parties: The PEOPLE of the State of New York, Respondent, v. Aaron Richard FISHER, Defendant-Appellant.
• Decision Date: 12 November 2010
• Court: New York Supreme Court Appellate Division

910 N.Y.S.2d 621

78 A.D.3d 1605

The PEOPLE of the State of New York, Respondent,

v.Aaron Richard FISHER, Defendant-Appellant.

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

Nov. 12, 2010.

Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant-Appellant.

Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.

PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND GORSKI, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ) and course of sexual conduct against a child in the second degree (§ 130.80[1][a] ). Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorialmisconduct during summation ( see People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800) and, in any event, that contention is without merit. "[T]he prosecutor's closing statement must be evaluated in light of the defense summation, which put into issue the complainants' character and credibility and justified the People's response" ( People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281). The majority of the prosecutor's comments on summation were within " 'the broad bounds of rhetorical comment permissible in closing argument' " ( People v. Williams, 28 A.D.3d 1059, 1061, 813 N.Y.S.2d 606, affd. 8 N.Y.3d 854, 831 N.Y.S.2d 367, 863 N.E.2d 588, quoting People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885), and they were a fair response to defense counsel's summation ( see People v. Figgins, 72 A.D.3d 1599, 899 N.Y.S.2d 702; People v. Diggs, 24 A.D.3d 1261, 805 N.Y.S.2d 886, lv. denied 6 N.Y.3d 812, 812 N.Y.S.2d 451, 845 N.E.2d 1282; People v. Melendez, 11 A.D.3d 983, 782 N.Y.S.2d 893, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979). Even assuming, arguendo, that some of the prosecutor's comments were beyond those bounds, we conclude that they were not so egregious as to deprive defendant of a fair trial ( see Figgins, 72 A.D.3d 1599, 899 N.Y.S.2d 702; People v. Sweney, 55 A.D.3d 1350, 1351, 864 N.Y.S.2d 634, lv. denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771; People v. Crawford, 299 A.D.2d 848, 749 N.Y.S.2d 447, lv. denied 99 N.Y.2d 581, 755 N.Y.S.2d 717, 785 N.E.2d 739 99 N.Y.2d 653, 760 N.Y.S.2d 118, 790 N.E.2d 292). Defendant also failed to preserve for our review his contention that the prosecutor improperly asked him on cross-examination whether prosecution witnesses were lying ( cf. People v. Paul, 212 A.D.2d 1020, 1021, 623 N.Y.S.2d 50, lv. denied 85 N.Y.2d 912, 627 N.Y.S.2d 335, 650 N.E.2d 1337; People v. Jarrells, 190 A.D.2d 120, 125-126, 597 N.Y.S.2d 305). In any event, we conclude that defendant was not thereby denied a fair trial ( see People v. Gonzalez, 206 A.D.2d 946, 615 N.Y.S.2d 191, lv. denied 84 N.Y.2d 867, 618 N.Y.S.2d 13, 642 N.E.2d 332).

Defendant further contends that the evidence is legally insufficient to support the conviction of course of sexual conduct against a child in the second degree inasmuch as the People failed to establish that the alleged sexual acts occurred "over a period of time not less than three months in duration" pursuant to Penal Law § 130.80(1). Defendant failed to preserve that contention for our review( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Mills, 63 A.D.3d 1717, 880 N.Y.S.2d 599, lv. denied 13 N.Y.3d 861, 891 N.Y.S.2d 695, 920 N.E.2d 100) and, in any event, that contention is without merit. Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that there is a valid line of reasoning and permissible inferences from which a rational jury could conclude that the sexual conduct occurred for the requisite duration ( see People v. Paramore, 288 A.D.2d 53, 732 N.Y.S.2d 410, lv. denied 97 N.Y.2d 759, 742 N.Y.S.2d 620, 769 N.E.2d 366; see also People v. Johnson, 24 A.D.3d 967, 968, 805 N.Y.S.2d 696, lv. denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant also failed to preserve for our review hiscontention that the evidence is legally insufficient to support the remaining counts ( see Gray, 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

We reject the further contention of defendant that he was denied effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). "With respect to defense counsel's failure to object to certain ... testimony ... [and alleged prosecutorial misconduct on summation], defendant failed to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's alleged shortcomings" ( People v. Elliott, 73 A.D.3d 1444, 1445, 900 N.Y.S.2d 814, lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [internal quotation marks omitted]; see People v. Taylor, 1 N.Y.3d 174, 176-178, 770 N.Y.S.2d 711, 802 N.E.2d 1109). Further, "[d]efense counsel's failure to make a motion for a trial order of dismissal on the ground raised on appeal does not constitute ineffective assistance of counsel because that motion would have had no chance of success" ( People v. Hunter, 70 A.D.3d 1388, 1389, 894 N.Y.S.2d 685, lv. denied 15 N.Y.3d 751, 906 N.Y.S.2d 824, 933 N.E.2d 223; see generally People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d...