Opinion
730 KA 19-01044
10-06-2023
The PEOPLE of the State of New York, Respondent, v. Timothy A. FERRY, Defendant-Appellant.
PAUL J. VACCA, JR., ROCHESTER, FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
PAUL J. VACCA, JR., ROCHESTER, FOR DEFENDANT-APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of predatory sexual assault against a child ( Penal Law § 130.96 ), course of sexual conduct against a child in the first degree (§ 130.75 [1] [b]), and sexual abuse in the first degree (§ 130.65 [4]). We note at the outset that the notice of appeal incorrectly states that defendant, "Eulese Cruz," is appealing from a February 1, 2019 judgment of conviction. The notice of appeal, including the caption, is otherwise accurate, however, and we therefore "exercise our discretion, in the interest of justice, and treat the notice of appeal as valid" ( People v. Mitchell , 93 A.D.3d 1173, 1173, 940 N.Y.S.2d 393 [4th Dept. 2012], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012] ; see CPL 460.10 [6] ; People v. Delgado , 183 A.D.3d 1236, 1236, 121 N.Y.S.3d 712 [4th Dept. 2020], lv denied 35 N.Y.3d 1044, 127 N.Y.S.3d 859, 151 N.E.3d 541 [2020] ). We now affirm.
Defendant contends that he was deprived of his right to testify at trial. Insofar as defendant contends that County Court was obligated to ensure that he knowingly waived his right to testify, defendant's contention lacks merit. "The trial court has no obligation to inform a defendant of [the] right to testify or to ascertain if the failure to testify was a voluntary and intelligent waiver of [the] right to do so" ( People v. Cosby , 82 A.D.3d 63, 66, 916 N.Y.S.2d 689 [4th Dept. 2011], lv denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011] ; see People v. Richards , 177 A.D.3d 1280, 1282, 112 N.Y.S.3d 394 [4th Dept. 2019], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 626, 149 N.E.3d 387 [2020] ). To the extent that defendant relatedly contends that defense counsel deprived him of his right to testify, that contention is based primarily on matters outside the record and must be raised in a motion pursuant to CPL 440.10 (see Richards , 177 A.D.3d at 1282, 112 N.Y.S.3d 394 ; see generally People v. Mirabella , 187 A.D.3d 1589, 1589-1590, 133 N.Y.S.3d 692 [4th Dept. 2020], lv dismissed 36 N.Y.3d 930, 135 N.Y.S.3d 339, 159 N.E.3d 1106 [2020] ).
Defendant did not request that the court charge the jury with any lesser included offense and thus failed to preserve for our review his current contention that the court erred in failing to do so (see CPL 470.05 [2] ; People v. Vrooman , 115 A.D.3d 1189, 1191, 982 N.Y.S.2d 248 [4th Dept. 2014], lv denied 23 N.Y.3d 969, 988 N.Y.S.2d 576, 11 N.E.3d 726 [2014] ; People v. Pross , 302 A.D.2d 895, 898, 754 N.Y.S.2d 792 [4th Dept. 2003], lv denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296 [2003] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Finally, we reject defendant's contention that the sentence is unduly harsh and severe.