People v. Tucker

• Decision Date: 28 May 2014
• Citation: 986 N.Y.S.2d 246,2014 N.Y. Slip Op. 03872,117 A.D.3d 1090
• Parties: The PEOPLE, etc., respondent, v. Gregory TUCKER, appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1090

986 N.Y.S.2d 246

2014 N.Y. Slip Op. 03872

The PEOPLE, etc., respondent,

v.Gregory TUCKER, appellant.

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

May 28, 2014.

Stephen N. Preziosi, New York, N.Y., for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.

PETER B. SKELOS, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and HECTOR D. LASALLE, JJ.

Appeals by the defendant (1) from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered April 30, 2010, convicting him of rape in the first degree and criminal sexual act in the first degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court dated April 10, 2012, which denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

ORDERED that the judgment and the order are affirmed.

The defendant's contention that his right to confrontation was violated ( see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177) is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Shaulov, 107 A.D.3d 829, 966 N.Y.S.2d 680) and, in any event, is without merit ( see People v. Pitre, 108 A.D.3d 643, 644, 968 N.Y.S.2d 585;People v. Rios, 102 A.D.3d 473, 475, 961 N.Y.S.2d 14).

The defendant failed to preserve for appellate review his contention that certain testimony from the complaining witness's mother and sister did not fall within the scope of the prompt outcry exception to the hearsay rule ( seeCPL 470.05[2]; People v. Batista, 92 A.D.3d 793, 938 N.Y.S.2d 479). In any event, the testimony from the complaining witness's mother and sister concerning the nature of the complaint fell within the scope of the prompt outcry exception to the hearsay rule, and did not exceed the allowable level of detail ( see People v. Batista, 92 A.D.3d at 793–794, 938 N.Y.S.2d 479;People v. Bernardez, 63 A.D.3d 1174, 881 N.Y.S.2d 316;People v. Salazar, 234 A.D.2d 322, 650 N.Y.S.2d 1002). While testimony from those witnesses concerning the complaining witness's identification of the defendant as the perpetrator should not have been elicited, the error was harmless under the circumstances of this case ( see People v. Rice, 75 N.Y.2d 929, 932, 555 N.Y.S.2d 677, 554 N.E.2d 1265;People v. Stalter, 77 A.D.3d 776, 777, 909 N.Y.S.2d 516).

The defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation ( see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883;People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The Supreme Court properly denied the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, which he made on the ground that a juror allegedly recognized him during the trial. The defendant's assertion that he was not aware of the issue until after he was sentenced is refuted by the record, and the defendant did not offer any explanation for his failure to raise the issue and make a record prior to the imposition of sentence ( see People v. White, 300 A.D.2d 830, 832, 752 N.Y.S.2d 166;People v. Berezansky, 229 A.D.2d 768, 771, 646 N.Y.S.2d 574;People v. Williams, 190 A.D.2d 590, 593 N.Y.S.2d 789). In any event, the defendant failed to establish that he was prejudiced by the juror's alleged recognition of him, as the...