People v. Goodson

• Decision Date: 10 November 2016
• Citation: 41 N.Y.S.3d 635,2016 N.Y. Slip Op. 07435,144 A.D.3d 1515
• Parties: The PEOPLE of the State of New York, Respondent, v. Terrel A. GOODSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1515
41 N.Y.S.3d 635
2016 N.Y. Slip Op. 07435

The PEOPLE of the State of New York, Respondent,
v.
Terrel A. GOODSON, Defendant–Appellant.

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

Nov. 10, 2016.

41 N.Y.S.3d 636

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.

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

PRESENT: PERADOTTO, J.P., CARNI, DeJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

144 A.D.3d 1515

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, predatory sexual assault against a child (Penal Law § 130.96 ). Defendant's girlfriend lived in an apartment across the hall from the apartment of the 10–year–old victim's mother. On the night of September 2, 2013, the 10–year–old victim slept at the apartment of defendant's girlfriend. At some point in the evening, defendant's girlfriend left, leaving only defendant, the victim, and the victim's younger sister in the apartment. Later in the night, after the victim and her sister fell asleep, defendant allegedly sexually assaulted the victim. The victim's sister remained asleep during the assault.

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 People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). “The People's case rested largely on the credibility of the victim and, notwithstanding minor inconsistencies in the victim's testimony, there is no basis in the record for us to disturb the jury's determination to credit the victim's testimony” (People v. Chrisley, 126 A.D.3d 1495, 1496, 8 N.Y.S.3d 511, lv. denied 26 N.Y.3d 1007, 20 N.Y.S.3d 548, 42 N.E.3d 218 ; see People v. Izzo, 104 A.D.3d 964, 966–967, 961 N.Y.S.2d 333, lv. denied 21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 ; see generally People v. Childres, 60 A.D.3d 1278, 1279, 875 N.Y.S.2d 662, lv. denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 ). Moreover, defendant's arguments regarding the credibility of the victim's mother and the lack of forensic evidence corroborating the victim's testimony are unavailing inasmuch

144 A.D.3d 1516

as “the testimony of [the victim] can be enough to support a conviction” (People v. Calabria, 3 N.Y.3d 80, 82, 783 N.Y.S.2d 321, 816 N.E.2d 1257 ). “Sitting as the thirteenth juror ... [and] weigh[ing] the evidence in light of the elements of the crime[s] as charged to the other jurors” (Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the jury did not fail to give the evidence the weight it should be accorded (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Kalen, 68 A.D.3d 1666, 1667, 890 N.Y.S.2d 877, lv. denied 14 N.Y.3d 842, 901 N.Y.S.2d 148, 927 N.E.2d 569 ).

Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct during summation inasmuch as he “either failed to object to the alleged misconduct, or failed to request curative instructions or move for a mistrial when [County Court] sustained his objection[ ]” (People v. Tolbert, 283 A.D.2d 930, 931, 723 N.Y.S.2d 916, lv. denied 96 N.Y.2d 908, 730 N.Y.S.2d 806, 756 N.E.2d 94 ; see

41 N.Y.S.3d 637

People v. Galloway, 54 N.Y.2d 396, 400, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Lewis, 140 A.D.3d 1593, 1595, 34 N.Y.S.3d 806 ). “In any event, ‘[t]he majority of the comments in question were within the broad bounds of rhetorical comment permissible during summations ..., and they were either a fair response to defense counsel's summation...