People v. SmithPeople v. Smith
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendаnt appeals from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degrеe (
Contrary to defendant‘s contention, County Court did not err in admitting in evidence the recording of the telephone conversation between defendant and the victim, together with a transcript of that conversation. The conversаtion was relevant, and the probative value outweighed any prejudice inasmuch as defendant‘s statements constitute an acknowledgment of guilt (see generally People v Caban, 14 NY3d 369, 374-375 [2010]; People v McCullough, 117 AD3d 1415, 1416 [2014], lv denied 23 NY3d 1040 [2014]). Defendant failed to preserve for our review his contention thаt the evidence violated his
We agree with defendant, however, that the court erred in admitting in evidence a video recording of the police interview of defendant. Defendant did not make any admissions during the 1 1/2-hour interview, and the interviewing detective made references to alleged inculpatory evidence that was not admitted in evidence at triаl. Although the court gave a limiting instruction that the jury was the sole factfinder and that it was to make its own credibility determinations аnd to disregard the detective‘s statements that no one would believe defendant, we conclude that any probative value of the video recording “‘[was] substantially outweighed by the danger that it [would] unfairly prejudice [defendant] or misleаd the jury‘” (Caban, 14 NY3d at 375, quoting People v Scarola, 71 NY2d 769, 777 [1988]; see People v Lunsford, 244 AD2d 507, 507-508 [1997], lv denied 91 NY2d 927 [1998]). We nevertheless further conclude that the error is harmless inasmuch as the evidence of guilt is overwhelming, and there is no significant probability that defendant would have been acquitted if the video recording had not been admitted in evidence (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Contrary to defendant‘s contention, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury, we conclude that the verdiсt is not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]; see generally Bleakley, 69 NY2d at 495). The victim testified to several specific incidents of rape bеtween July 2007 and July 2008, when she was 12 years old, and to another incident when she was 16 years old. During a recorded telephone conversation with the victim, defendant made inculpatory statements. The victim asked defendant several times to promise that he would stop having sex with her, and he responded, “I will stop,” and “I promised.” When the victim stated that he had promised in the past that he would stop, defendant stated, “I‘m serious now.” Defendant told the victim during the telephone call to tell her mother that she had lied when she had accused defendant because the victim was angry with him for having a baby with another woman and therefore did not pay attention to the victim.
Defendant contends that the court failed to rule on the suffi
Defendant contends that he was denied effective assistance of counsel based upon defense counsel‘s failure to consult with or call a medical expert to challеnge the People‘s expert regarding child abuse accommodation syndrome. To the extent that defendant‘s сontention involves matters that do not appear on the record, that contention must be raised by way of a
The sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra, Peradotto, Carni and Sconiers, JJ.