People v. Simmons

• Decision Date: 07 August 1995
• Citation: 630 N.Y.S.2d 503,218 A.D.2d 677
• Parties: The PEOPLE, etc., Respondent, v. Floyd SIMMONS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 503

630 N.Y.S.2d 503

218 A.D.2d 677

The PEOPLE, etc., Respondent, v. Floyd SIMMONS, Appellant.

Supreme Court, Appellate Division,

Second Department.

Aug. 7, 1995.

Larry Sheehan, Scarsdale, for appellant.

Jeanine Pirro, District Attorney, White Plains (Valerie A. Livingston and Maryanne Luciano, of counsel), for respondent.

Before BALLETTA, J.P., and O'BRIEN, THOMPSON, SANTUCCI and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cowhey, J.), dated January 14, 1993, convicting him of rape in the first degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Issues of credibility as well as the weight to be accorded the evidence presented are primarily questions to be determined by the jury which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). Its determination should be accorded great weight on appeal and will not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

The defendant's claim of prejudice stemming from the court's denial of his challenge for cause to a prospective juror is without merit since the juror did not exhibit a state of mind which was likely to preclude him from rendering an impartial verdict based on the evidence at trial (see, CPL 270.20[1][b]; People v. Torpey, 63 N.Y.2d 361, 365, 482 N.Y.S.2d 448, 472 N.E.2d 298). The juror was not empaneled, and the defendant had not exhausted all his peremptory challenges at the time of the challenge or by the time the jury selection was complete (see, CPL 270.25[2][b], [3]; 270.20[2]; People v. Guzman, 76 N.Y.2d 1, 3, 556 N.Y.S.2d 7, 555 N.E.2d 259; People v. Blyden, 55 N.Y.2d 73, 447 N.Y.S.2d 886, 432 N.E.2d 758).

The defendant has not preserved for appellate review his claim that the court erred in receiving certain prompt outcry evidence, and we decline to review this issue in the exercise of our interest of justice jurisdiction (see, CPL 470.05[2]; People v. Williams, 75 N.Y.2d 858, 859, 552 N.Y.S.2d 917, 552 N.E.2d 165; People v. Fabian, 213 A.D.2d 298, 625 N.Y.S.2d 4; People v. Vargas, 213 A.D.2d 258, 624 N.Y.S.2d 11; People v. Lourensz, 211 A.D.2d 492, 621 N.Y.S.2d 324).

Similarly, the defendant has not preserved for appellate review his contention that the court's instruction to the jury on reasonable doubt effectively shifted the burden of proof from the prosecution to the defense (see, CPL 470.05[2]; People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430; People v. Santiago, 206 A.D.2d 492, 493, 614 N.Y.S.2d 548; People v. Gordon, 204 A.D.2d 566, 614 N.Y.S.2d 213), and since the court's instructions as a whole conveyed the appropriate principle of law (see, People v. Warren, 76 N.Y.2d 773, 559 N.Y.S.2d 954, 559 N.E.2d 648; People v. Alston, 211 A.D.2d 498, 621 N.Y.S.2d 329; People v. Benjamin, 210 A.D.2d 418, 620 N.Y.S.2d 416; see also, People v. Melendez, 205 A.D.2d 392, 613 N.Y.S.2d 395), we decline to review the issue in the exercise of our interest of justice jurisdiction (see also, People v. Robinson, 218 A.D.2d 673, 630 N.Y.S.2d 505 [decided herewith].

Viewing the defense counsel's conduct in its entirety, the defendant was not deprived of the effective assistance of counsel (see, People v. Rivera, 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698; People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Wells, 187 A.D.2d 745, 591 N.Y.S.2d 44).

The sentence imposed was neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The defendant's remaining contentions are either unpreserved for appellate review (CPL 470.05[2] or without merit.

BALLETTA, J.P., and THOMPSON and SANTUCCI, JJ., concur.

O'BRIEN, J., dissents, and votes to reverse the judgment and order a new...