People v. AlexanderPeople v. Alexander
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v TYREE ALEXANDER, Appellant. [972 NYS2d 124]—
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of sexual abuse in the first degree (
Defendant’s contention that the court erred in allowing the seven-year-old victim to give sworn testimony is not preserved for our review (see People v Dickens, 48 AD3d 1034, 1034-1035 [2008], lv denied 10 NY3d 958 [2008]). In any event, the court did not abuse its discretion in admitting that testimony inasmuch as the witness demonstrated sufficient intelligence and capacity, and further demonstrated that she understood the nature of an oath, i.e., she “appreciate[d] the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished” (
Defendant next contends that the evidence is legally insufficient to establish that he had sexual contact with the victim. Defendant failed to preserve that contention for our review inasmuch as he failed to renew his motion for trial order of dismissal after presenting evidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, that contention lacks merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
We reject the contention of defendant that he received ineffective assistance of counsel. Defendant failed to establish the absence of a strategic reason for defense counsel’s failure to exercise any challenges during voir dire (see generally People v Benevento, 91 NY2d 708, 712 [1998]; People v Turck, 305 AD2d 1072, 1073 [2003], lv denied 100 NY2d 566 [2003]). Defendant also failed to establish the absence of a strategic reason for defense counsel’s failure to call any witnesses at the Huntley hearing, or any witnesses other than defendant at trial (see generally Benevento, 91 NY2d at 712). Inasmuch as the court did not abuse its discretion in permitting the victim to testify, defense counsel’s failure to object to the admission of that testimony cannot be considered ineffective assistance of counsel (see People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; People v Crump, 77 AD3d 1335, 1336 [2010], lv denied 16 NY3d 857 [2011]). Contrary to defendant’s contention, the record establishes that defense counsel adequately cross-examined the witnesses at trial and presented a cogent defense. In fact, we note that defense counsel’s cross-examination of the witnesses raised some inconsistencies in their testimony, and defendant relies on those inconsistencies in contending that the verdict is against the weight of the evidence. Defendant failed to establish the absence of a strategic reason for the fact that defense counsel did not move for a mistrial or seek a curative instruction after an outburst by the mother of the victim during the testimony of the victim’s sister (see generally Benevento, 91 NY2d at 712). Inasmuch as a motion for a mistrial would have had “little or no chance of success,” defense counsel’s failure to seek that relief cannot be considered ineffective assistance (Stultz, 2 NY3d at 287).