People v. Tucker

• Decision Date: 17 June 2021
• Docket Number: 387,KA 19-00346
• Citation: 195 A.D.3d 1547,150 N.Y.S.3d 443
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher TUCKER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1547
150 N.Y.S.3d 443

The PEOPLE of the State of New York, Respondent,
v.
Christopher TUCKER, Defendant-Appellant.

387
KA 19-00346

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

Entered: June 17, 2021

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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

195 A.D.3d 1547

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 predatory sexual assault against a child ( Penal Law § 130.96 ), defendant contends that reversal is required because County Court erred in denying his request to include certain language from the bill of particulars in the jury instructions and that, based on the victim's testimony and the instructions that were ultimately given, the jury could have convicted him based on a theory that differed from the one set forth in the indictment as limited by the bill of particulars. We reject that contention.

It is well settled that, "[w]here the court's jury instruction on a particular count erroneously contains an additional theory that differs from the theory alleged in the indictment, as limited by the bill of particulars, and the evidence adduced at trial could have established either theory, reversal of the conviction on that count is required because there is a possibility that the jury could have convicted the defendant upon the uncharged theory" ( People v. Graves , 136 A.D.3d 1347, 1348, 25 N.Y.S.3d 477 [4th Dept. 2016], lv denied 27 N.Y.3d 1069, 38 N.Y.S.3d 840, 60 N.E.3d 1206 [2016] ). Here, although the victim testified about incidents in addition to those mentioned in the bill of particulars, there was no "evidence from which the trial jury could have concluded that defendant accomplished his crime[ ]" under any theory other than the one alleged ( People v. Grega , 72 N.Y.2d 489, 496, 534 N.Y.S.2d 647, 531 N.E.2d 279 [1988] ). Any discrepancy between the accusations and the testimony "does not amount to a material change in the theory of the prosecution but constitutes merely an alteration in ... factual incident[s] that is still consistent with the theory presented in the bill of particulars" ( People v. Beard , 148 A.D.3d 1745, 1746, 51 N.Y.S.3d 302 [4th Dept. 2017], lv

150 N.Y.S.3d 446

denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] [internal quotation marks omitted]; see also Grega , 72 N.Y.2d at 495, 534 N.Y.S.2d 647, 531 N.E.2d 279 ). Based on the testimony at trial and the instructions that were given, we conclude that "the jury's guilty verdict could only have been

195 A.D.3d 1548

based on the evidence of [the crime] as charged in the indictment" as limited by the bill of particulars ( Grega , 72 N.Y.2d at 496, 534 N.Y.S.2d 647, 531 N.E.2d 279 ). We further conclude that the indictment and bill of particulars provided defendant with "fair notice of the accusations made against him, so that he [was] able to prepare a defense" ( People v. Iannone , 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ; see Grega , 72 N.Y.2d at 495, 534 N.Y.S.2d 647, 531 N.E.2d 279 ; People v. Dawson , 79 A.D.3d 1610, 1611, 913 N.Y.S.2d 592 [4th Dept. 2010], lv denied 16 N.Y.3d 894, 926 N.Y.S.2d 30, 949 N.E.2d 978 [2011] ).

Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime 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 [2007] ), 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 [1987] ). The victim's testimony "was not so unworthy of belief as to be incredible as a matter of law ... and thus it cannot be said that the jury failed to give the evidence the weight it should be accorded" ( People v. Rufus , 56 A.D.3d 1175, 1175, 867 N.Y.S.2d 608 [4th Dept. 2008], lv denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 [2009] [internal quotation marks omitted]; cf. People v. O'Neil , 66 A.D.3d 1131, 1133-1134, 887 N.Y.S.2d 705 [3d Dept. 2009] ). Defense counsel raised the same contentions concerning the victim's credibility to the jury as defendant raises on appeal, and the jury rejected them. It is well settled that the jury's resolution of credibility issues is entitled to great deference (see generally People v. Romero , 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ), and we perceive no reason to overturn the jury's credibility determinations here.

Defendant contends that he was deprived of a fair trial by several instances of prosecutorial misconduct that occurred...