People v. Walker

Mar 31, 1999
Versions:259 A.D.2d 1026
688 N.Y.S.2d 326
1999 N.Y. App. Div. LEXIS 3424

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of sodomy in the first degree (Penal Law § 130.50 [3]) and sexual abuse in the first degree (three counts) (Penal Law § 130.65 [3]) and sentencing him to consecutive terms of incarceration aggregating 15 to 30 years. Defendant contends that he was denied his right to a speedy trial (see, CPL 30.30); that he was denied a fair trial by being presented to the jury in prison clothing; that the verdict is against the weight of the evidence; that defendant was denied effective assistance of counsel; and that he was denied a fair trial by the prosecutor’s summation.

Defendant failed to move to dismiss the indictment on CPL *102730.30 grounds. Thus, the statutory speedy claim is waived and may not be raised for the first time on appeal (see, People v Jordan, 62 NY2d 825, 826; People v Adams, 38 NY2d 605, 607).

Given the failure of defendant to object to wearing prison garb, his contention that he was thereby denied a fair trial is not preserved for our review (see, People v Owens, 251 AD2d 1037, lv denied 92 NY2d 928; People v Grimes, 112 AD2d 711, 712). In any event, the record does not support the contention that defendant was compelled to wear prison clothing (see, People v Grimes, supra, at 712), and the curative instruction given by County Court dispelled any prejudice (see, People v Gallan, 78 AD2d 904).

Defendant’s conviction was based on the credible testimony of the then 11-year-old victim and defendant’s own incriminating statement. The jury did not fail to give the evidence the weight it should be accorded (see, People v Bleakley, 69 NY2d 490, 495).

Defendant was not denied effective assistance of counsel. Defense counsel vigorously cross-examined the People’s witnesses, exposed certain inconsistencies in their testimony, followed a definite and coherent defense strategy, and gave opening and closing statements and presented evidence supporting that defense strategy. Defendant thus received meaningful representation (see, People v Baldi, 54 NY2d 137, 147).

Finally, we conclude that defendant was not denied a fair trial by the prosecutor’s summation, which constituted fair response to defense counsel’s summation (see, People v Tanksley, 258 AD2d 952; People v Maisonet, 172 AD2d 274, lv denied 78 NY2d 969). In any event, the prosecutor’s comments were isolated and not so pervasive or egregious as to warrant a reversal (see, People v Pritchett, 248 AD2d 967, 968, lv denied 92 NY2d 929). (Appeal from Judgment of Steuben County Court, Bradstreet, J. — Sodomy, 1st Degree.) Present — Den-man, P. J., Lawton, Hayes, Pigott, Jr., and Hurlbutt, JJ.