People v. Coger
Opinion of the Court
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of five counts each of rape in the second degree (Penal Law § 130.30 [1]), sexual abuse in the second degree (§ 130.60 [2]) and incest (§ 255.25). He was acquitted of four counts each of rape in the first degree (§ 130.35 [1]) and sexual abuse in the first degree (§ 130.65 [1]). Defendant’s sentence, reduced by operation of law to an aggregate indeterminate term of incarceration of 10 to 20 years (see § 70.30 [1] [e] [ii] [B]), is neither unduly harsh nor severe. In addition, we conclude that the verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]) and that defendant received effective assistance of counsel (see People v Baldi, 54 NY2d 137, 147 [1981]). Also contrary to defendant’s contention, County Court gave a proper curative instruction when it struck the victim’s testimony concerning defendant’s reaction to a confrontation between the victim and defendant (see generally People v Daymon, 239 AD2d 907, 908 [1997], lv denied 94 NY2d 821 [1999]). The court properly allowed the People to present evidence of defendant’s prior bad acts concerning forcible compulsion in their case-in-chief because that evidence was relevant to establish an element of two of the crimes charged (see People v Chase, 277 AD2d 1045 [2000], lv denied 96 NY2d 733 [2001]).
Finally, we note that the District Attorney failed to file a brief in opposition to this appeal and thus failed “to perform his duty to the people of his county” (People v Herman, 187 AD2d 1027, 1028 [1992], citing People v Pacella, 47 AD2d 711 [1975]). The District Attorney is obligated to file a brief in opposition “unless the appeal is from a judgment which he concedes should be reversed” (id.). “ ‘This responsibility and duty of the District Attorney is in no way diminished or excused by reason of the fact that we have affirmed the conviction after a careful consideration of the record and law’ ” (Pacella, 47 AD2d at 711, quoting People v Holcombe, 34 AD2d 728, 728 [1970]). Present—Pigott, Jr., P.J., Pine, Hurlbutt, Kehoe and Hayes, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.