SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1414 

KA 11-01329 

PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MAXWELL S. COAPMAN, DEFENDANT-APPELLANT. 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Cayuga County Court (Michael F.

McKeon, A.J.), rendered May 20, 2010. The judgment convicted

defendant, upon a jury verdict, of criminal sexual act in the first

degree (two counts), sexual abuse in the second degree (eight counts),

criminal sexual act in the second degree (seven counts), rape in the

second degree (two counts) and endangering the welfare of a child. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him after a

jury trial of, inter alia, two counts of criminal sexual act in the

first degree (Penal Law § 130.50 [4]) and two counts of rape in the

second degree (§ 130.30 [1]), defendant contends that he was deprived

of the right to fair notice of the charges against him because the

dates in the indictment on which the offenses allegedly occurred were

overbroad. We reject that contention. “In view of the age of the

victim and the date on which she reported the crimes, we conclude that

the one-month and two-month periods specified in the indictment

provided defendant with adequate notice of the charges against him to

enable him to prepare a defense” (People v Franks, 35 AD3d 1286, 1286,

lv denied 8 NY3d 922; see generally People v Morris, 61 NY2d 290, 295-

296).

We reject defendant’s further contention that County Court abused

its discretion in denying his request for an adjournment to secure the

attendance of a defense witness. “It is incumbent on a defendant

seeking an adjournment to procure a witness to show that the witness’s

testimony would be material, noncumulative and favorable to the

defense” (People v Softic, 17 AD3d 1075, 1076, lv denied 5 NY3d 794;

see People v Acevedo, 295 AD2d 141, lv denied 98 NY2d 766). While

defendant established that the testimony of the proposed witness would
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KA 11-01329 

have been favorable to the defense, he failed to establish that the

testimony was material. Furthermore, the proposed witness was not

scheduled to leave the country until the third day of trial, and the

court offered to permit the witness to testify out of order or by

video. Because the court afforded defendant the opportunity to call

the witness to testify before the witness’s scheduled departure, we

conclude that there has been no showing of prejudice such that it can

be said that the court abused its discretion in denying defendant’s

request for an adjournment (see People v Peterkin, 81 AD3d 1358, 1360,

lv denied 17 NY3d 799).

Contrary to defendant’s contention, the court did not err in

admitting in evidence a letter that defendant wrote to his adopted

daughter discussing the alleged sexual abuse of the victim. There

were “sufficient assurances of the identity and unchanged condition of

the evidence . . ., and thus any alleged gaps in the chain of custody

went to the weight of the evidence, not its admissibility” (People v

Kennedy, 78 AD3d 1477, 1478, lv denied 16 NY3d 798; see People v

Hawkins, 11 NY3d 484, 494). Defendant contends on appeal that the

court erred in permitting an expert to testify with respect to child

sexual abuse accommodation syndrome because the expert supervised the

victim’s therapist and was thus familiar with the victim’s case. That

contention is not preserved for our review, however, inasmuch as

defendant objected to the expert’s testimony on a different ground at

trial (see e.g. People v Valentine, 48 AD3d 1268, 1268-1269, lv denied

10 NY3d 871; People v Smith, 9 AD3d 745, 746-747, lv denied 3 NY3d

742). In any event, we conclude that defendant’s present contention

lacks merit because “the expert described specific behavior that might

be unusual or beyond the ken of a jury [and] did not give an opinion

concerning whether the abuse actually occurred” (People v Lawrence, 81

AD3d 1326, 1327, lv denied 17 NY3d 797; see People v Martinez, 68 AD3d

1757, 1758, lv denied 14 NY3d 803).

Viewing the evidence, the law and the circumstances of this case

in totality and as of the time of the representation, we conclude that

defendant received meaningful representation (see generally People v

Baldi, 54 NY2d 137, 147), and we further conclude that any

deficiencies in the presentence report do not warrant reversal (see

People v Singh, 16 AD3d 974, 977-978, lv denied 5 NY3d 769; see also

People v Rudduck, 85 AD3d 1557, lv denied 17 NY3d 861). In addition,

viewing the evidence in light of the elements of the crimes as charged

to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude

that the verdict is not against the weight of the evidence (see

generally People v Bleakley, 69 NY2d 490, 495). “[R]esolution of

issues of credibility, as well as the weight to be accorded to the

evidence presented, are primarily questions to be determined by the

jury . . ., and the testimony of the victim . . . was not so

inconsistent or unbelievable as to render it incredible as a matter of

law” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942

[internal quotation marks omitted]).

Defendant failed to preserve for our review his contention that

the court “improperly penalized him for exercising his right to a jury
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KA 11-01329 

trial, since he did not raise the issue at the time of sentencing”

(People v Tannis, 36 AD3d 635, lv denied 8 NY3d 927; see People v

Dorn, 71 AD3d 1523, 1523-1524). We conclude in any event that his

contention lacks merit. “[T]he mere fact that a sentence imposed

after trial is greater than that offered in connection with plea

negotiations is not proof that defendant was punished for asserting

[his] right to trial . . ., and the record shows no retaliation or

vindictiveness against the defendant for electing to proceed to trial”

(Dorn, 71 AD3d at 1524 [internal quotation marks omitted]). Finally,

we reject defendant’s challenge to the severity of the sentence, and

we note that the periods of postrelease supervision imposed on the

consecutive terms of imprisonment “shall merge with and be satisfied

by discharge of the period of post[]release supervision having the

longest unexpired time to run” (Penal Law § 70.45 [5] [c]). 

Entered: December 30, 2011 Frances E. Cafarell

Clerk of the Court