People v James E. Comfort

People v Comfort 2006 NY Slip Op 04639 [30 AD3d 1069] June 9, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 23, 2006

The People of the State of New York, Respondent, v James E. Comfort, Appellant.

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Appeal from a judgment of the Ontario County Court (James R. Harvey, J.), rendered May 19, 2004. The judgment convicted defendant, upon a jury verdict, of rape in the second degree (two counts), rape in the third degree and endangering the welfare of a child (four counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of rape in the second degree (Penal Law § 130.30 [1]), one count of rape in the third degree (§ 130.25 [2]), and four counts of endangering the welfare of a child (§ 260.10 [1]). Contrary to the contention of defendant, County Court did not err in summarily denying his motion to set aside the verdict based upon the unsupported claim that a deputy had spoken to a juror during deliberations (see People v Laguer, 195 AD2d 483, 484 [1993], lv denied 82 NY2d 756 [1993]; see also People v Bryan, 270 AD2d 875 [2000], lv denied 95 NY2d 904 [2000]). Defendant's motion papers did "not contain sworn allegations of all facts essential to support the motion" (CPL 330.40 [2] [e] [ii]), nor did they "allege any ground constituting legal basis for the" relief requested (CPL 330.40 [2] [e] [i]). Hearsay allegations are insufficient to support a claim of juror misconduct (see People v Bradley, 258 AD2d 936 [1999], lv denied 93 NY2d 922 [1999]; People v Hentley, 155 AD2d 392, 393 [1989], lv denied 75 NY2d 919 [1990]).

Contrary to defendant's further contention, reversal is not required as a result of the unprompted testimony of a prosecution witness that she had seen defendant on the television news in connection with a prior accusation of rape. Given the inadvertence and fleeting nature of that testimony (see People v Greene, 250 AD2d 547 [1998], lv denied 92 NY2d 925 [1998]; People v Mosley, 170 AD2d 990, 990-991 [1991], lv denied 77 NY2d 964 [1991]), the court's prompt corrective action was sufficient to alleviate any prejudice (see People v Santiago, 52 NY2d 865, 866 [1981]; Greene, 250 AD2d 547). The jury is presumed to have followed the court's curative instructions (see People v Cruz, 272 AD2d 922, 923 [2000], affd 96 NY2d 857 [2001]; People v Davis, 58 NY2d 1102, 1104 [1983]). We thus conclude that the court properly denied defendant's request for a mistrial (see People v Zanghi, 256 AD2d 1120 [1998], lv denied 93 NY2d 881 [1999]), especially given the overwhelming nature of the [*2]evidence against defendant (see Greene, 250 AD2d 547). Finally, defendant was not deprived of a fair trial by the prosecutor's comments on summation, which were not so inflammatory or egregious as to deny defendant due process (see People v Cohen, 302 AD2d 904, 905 [2003]; People v Alshoaibi, 273 AD2d 871, 873 [2000], lv denied 95 NY2d 960 [2000]). Present—Pigott, Jr., P.J., Scudder, Kehoe, Smith and Pine, JJ.