Opinion
117 KA 18–00050
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Kenneth R. CALKINS, Jr., Defendant–Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. KENNETH R. CALKINS, JR., DEFENDANT–APPELLANT PRO SE. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
KENNETH R. CALKINS, JR., DEFENDANT–APPELLANT PRO SE.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reducing the mandatory surcharge to $ 250 and the crime victim assistance fee to $ 20, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of two counts of criminal sexual act in the first degree ( Penal Law § 130.50[3] ), defendant contends in his main brief that reversal is required because the record does not establish that he knowingly, intelligently, and voluntarily waived his right to testify in his own defense at trial. We reject that contention. Generally, the trial court is not obligated to ascertain whether a defendant's failure to testify was the result of a knowing, intelligent, and voluntary waiver (see People v. Pilato , 145 A.D.3d 1593, 1595, 46 N.Y.S.3d 313 [4th Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] ; see also People v. Morgan , 149 A.D.3d 1148, 1152, 51 N.Y.S.3d 218 [3d Dept. 2017] ). Although there are "exceptional, narrowly defined circumstances[ in which] judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant's right to testify is protected" ( United States v. Pennycooke , 65 F.3d 9, 12 [3d Cir.1995] ; see Brown v. Artuz , 124 F.3d 73, 79 n. 2 [2d Cir.1997] ), such circumstances are not present here (see Pilato , 145 A.D.3d at 1595, 46 N.Y.S.3d 313 ).
Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contentions in his main and pro se supplemental briefs that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Further, contrary to defendant's contention in his main brief, the sentence is not unduly harsh or severe. We agree with defendant, however, that County Court erred in directing him to pay a mandatory surcharge of $ 300 and a crime victim assistance fee of $ 25. Those amounts are in an amendment to Penal Law § 60.35(1)(a) that became effective after the instant offense was committed, and the court therefore erred in applying them to this conviction (cf. People v. Caggiano , 46 A.D.3d 1405, 1406, 848 N.Y.S.2d 797 [4th Dept. 2007] ). Although defendant failed to preserve his contention for our review (see People v. Arnold , 107 A.D.3d 1526, 1528, 967 N.Y.S.2d 801 [4th Dept. 2013], lv denied 22 N.Y.3d 953, 977 N.Y.S.2d 185, 999 N.E.2d 550 [2013] ), we exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We therefore modify the judgment by reducing the mandatory surcharge to $ 250 and the crime victim assistance fee to $ 20. We have considered the remaining contentions in defendant's pro se supplemental brief and conclude that none warrants reversal or further modification of the judgment.