People v. McAvoy
894 N.Y.S.2d 270
N.Y. App. Div.
2010
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JOSEPH R. MCAVOY, Appellant.

Supreme Court, Appellate Division, Fourth Department, New York

February 11, 2010

70 AD3d 1467 | 894 NYS2d 270

Scudder, P.J., Centra, Fahey, Carni and Pine, JJ.

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered December 18, 2006. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the second degree (two counts), endangering the welfare of a child (three counts), unlawfully dealing with a child in the first degree, and sexual abuse in the second degree (two counts).

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 course of sexual conduct against a child in the second degree (Penal Law § 130.80 [1] [a], [b]) and sexual abuse in the second degree (§ 130.60 [2]), three counts of endangering the welfare of a child (§ 260.10 [1]), and one count of unlawfully dealing with a child in the first degree (§ 260.20 [2]). Defendant contends that County Court erred in refusing to suppress his statements to the police. We reject that contention. “The credibility determinations of the suppression court receive deference and will not be disturbed if supported by the record” (, lv dismissed ; see ; , lv denied ). Here, the evidence at the suppression hearing established that defendant voluntarily accompanied a police officer to the police station and waived his Miranda rights, that the questioning lasted only 30 minutes, and that defendant received no promises and was not threatened in any way (see ; , lv denied ; , lv denied ).

We also reject the contention of defendant that the court erred in denying his motion to sever the counts of the indictment. The offenses were properly joined because they involved incidents in which proof with respect to one crime would be material and admissible as evidence in chief in a trial with respect to the other crimes, and they all involved the same or similar statutory provisions (see CPL 200.20 [2] [b], [c]; People v Comfort, , lv denied ; , lv denied ). Defendant “failed to meet his burden of submitting sufficient evidence of prejudice from the joinder to establish good cause to sever” (; see CPL 200.20 [3]; , lv denied ).

In his motion for a trial order of dismissal, defendant failed to raise the majority of the specific challenges now raised on appeal and thus failed to preserve for our review the majority of his challenges to the legal sufficiency of the evidence (see ). In any event, all of his challenges lack merit (see generally ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see ), we further conclude that the verdict is not against the weight of the evidence (see generally ). Contrary to defendant‘s contention, minor inconsistencies in the testimony of the People‘s witnesses do not render the verdict against the weight of the evidence (see , lv denied ; ).

Defendant further contends that he was deprived of a fair trial based on improper remarks by the court and by prosecutorial misconduct on summation. Defendant failed to preserve his contention for our review with respect to the majority of the instances of alleged misconduct (see CPL 470.05 [2]), and we decline to exercise our power to address those instances as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). In any event, even had defendant preserved all of those instances for our review, we would nevertheless conclude that reversal is not warranted. While some of the remarks were arguably improper, they were not so egregious to deprive defendant of a fair trial (see generally , lv denied ). Furthermore, with respect to the prosecutor‘s alleged misconduct on summation, the court alleviated any prejudice arising therefrom “by instructing the jury that the comments and summations of the prosecutor and defense counsel do not constitute evidence” (, affd ).

Contrary to the further contentions of defendant, he received meaningful representation (see generally ), and the sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra, Fahey, Carni and Pine, JJ.