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SMITH, EVERTON, PEOPLE v
Citation: Not availableDocket: KA 13-00959
Court: Appellate Division of the Supreme Court of the State of New York; March 27, 2015; New York; State Appellate Court
Original Court Document: View Document
The Supreme Court of the State of New York, Appellate Division, unanimously affirmed the judgment of the Erie County Court that convicted Everton Smith of first-degree sexual conduct against a child and third-degree rape, following a jury trial. The court found that the admission of a recorded telephone conversation between Smith and the victim was appropriate, as it contained statements that acknowledged guilt, and its probative value outweighed any potential prejudice. Smith's claim regarding a due process violation was not preserved for review and deemed meritless. However, the court acknowledged an error in admitting a video recording of Smith's police interview, as it included references to unadmitted inculpatory evidence and lacked any admissions from Smith. Despite this error, the court ruled it was harmless due to overwhelming evidence of guilt, indicating no significant likelihood of acquittal if the video had been excluded. The evidence presented was legally sufficient to support the conviction, as the victim provided detailed testimonies of several incidents of rape occurring when she was 12, as well as another incident at age 16. During the recorded conversation, Smith made several incriminating remarks, including promises to stop the abuse and instructions for the victim to deny her accusations against him. The defendant argues that the court did not address the sufficiency of his prima facie case regarding the alleged racial motivation behind the People’s peremptory challenge. This argument is deemed irrelevant, as the People provided a race-neutral justification, rendering the prima facie issue moot. The court’s conclusion of no discriminatory intent is upheld and not challenged. The defendant also disputes the court’s decision to grant a challenge for cause against a juror who expressed discomfort judging others, which is rejected based on established case law. While the defendant exhausted his peremptory challenges, he preserved his argument regarding a prospective juror's challenge for cause. This juror, who had a personal connection to sexual abuse, stated she could be fair and unbiased, leading the court to find her statements credible. Additionally, the defendant claims ineffective assistance of counsel due to the failure to consult or call a medical expert to counter the prosecution's expert on child abuse accommodation syndrome. Matters not reflected in the record must be raised through a CPL article 440 motion. However, the available record shows that defense counsel effectively cross-examined the prosecution’s expert, and the lack of a defense expert did not constitute ineffective assistance as the defendant did not prove the potential expert's availability or that such testimony would have impacted the jury's decision. The court found the sentence imposed to be appropriate.