Opinion
253 KA 15–01898
04-24-2020
The PEOPLE of the State of New York, Respondent, v. James A. RILEY, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DANIELLE C. WILD OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DANIELLE C. WILD OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of three counts of predatory sexual assault against a child ( Penal Law § 130.96 ), defendant contends that the victim's trial testimony rendered duplicitous count two of the indictment. Defendant failed to preserve that contention for our review (see People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ; People v. Box, 145 A.D.3d 1510, 1512–1513, 44 N.Y.S.3d 645 [4th Dept. 2016], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017] ). In any event, we conclude that reversal is not required. Counts one and three of the indictment alleged that defendant engaged in sexual intercourse with the victim on two separate occasions, each happening in a different time frame. Count two alleged that, during the same time frame in which the incident addressed in count one occurred, defendant also engaged in one act of anal sexual conduct with the victim. Even assuming, arguendo, that the victim's testimony established that there were two separate incidents of anal sexual conduct (see Penal Law § 130.00 [2][b] ), we conclude that, based on the evidence presented at trial, there is an adequate basis in the record to connect count two of the indictment to a particular incident of anal sexual conduct, and there is no danger that Supreme Court, sitting as the finder of fact, convicted defendant of that count based on a different incident of anal sexual conduct from that alleged in the indictment (see People v. Sinha, 84 A.D.3d 35, 44, 922 N.Y.S.2d 275 [1st Dept. 2011], affd 19 N.Y.3d 932, 951 N.Y.S.2d 697, 976 N.E.2d 223 [2012] ; People v. Ramirez, 99 A.D.3d 1241, 1242, 951 N.Y.S.2d 810 [4th Dept. 2012], lv denied 20 N.Y.3d 988, 958 N.Y.S.2d 703, 982 N.E.2d 623 [2012] ; cf. People v. Dukes, 122 A.D.3d 1370, 1371–1372, 996 N.Y.S.2d 847 [4th Dept. 2014], lv denied 26 N.Y.3d 928, 17 N.Y.S.3d 91, 38 N.E.3d 837 [2015] ). The testimony and the prosecutor's summation "made it clear" that defendant's charge of anal sexual conduct stemmed from the same incident as count one and, as a result, "there is no reasonable possibility that the [court] may have convicted defendant of [a] different act[ ]" ( People v. Kessler, 122 A.D.3d 1402, 1405, 996 N.Y.S.2d 836 [4th Dept. 2014], lv denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 [2015] ).
We reject defendant's further contention that reversal is required based on the alleged variance between the time frames of the incidents alleged in the indictment and the victim's testimony with respect to those time frames. The victim's confusion concerning which of the incidents occurred first did not deprive defendant of the right to a fair trial or the right to present a defense inasmuch as corroborating details established that the incidents occurred at or around the time frames set forth in the indictment. Moreover, with respect to each offense, "the time of the offense is not a material element," and any variance between the time frames alleged in the indictment and the victim's testimony was "relatively minor" ( People v. Davis, 15 A.D.3d 920, 921, 788 N.Y.S.2d 779 [4th Dept. 2005], lv denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975 [2005], reconsideration denied 5 N.Y.3d 787, 801 N.Y.S.2d 808, 835 N.E.2d 668 [2005] ; see People v. La Marca, 3 N.Y.2d 452, 458–459, 165 N.Y.S.2d 753, 144 N.E.2d 420 [1957], mot to amend remittitur granted 3 N.Y.2d 933 –934, 942, 167 N.Y.S.2d 955, 145 N.E.2d 892 [1957], rearg. denied 3 N.Y.2d 942 [1957], cert denied 355 U.S. 920, 78 S.Ct. 351, 2 L.Ed.2d 279 [1958], rearg. denied 4 N.Y.2d 960, 176 N.Y.S.2d 1026, 152 N.E.2d 256 [1958] ; cf. People v. Bigda, 184 A.D.2d 993, 993–994, 584 N.Y.S.2d 238 [4th Dept. 1992] ).
Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In addition, viewing the evidence in light of the elements of the crimes 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 conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant further contends that he was denied effective assistance of counsel based upon several acts or omissions on the part of defense counsel. Regarding defense counsel's decision to waive a Huntley hearing, defendant has failed to show that a request for suppression "would have been successful and that defense counsel's failure to [seek suppression] deprived him of meaningful representation" ( People v. Marcial, 41 A.D.3d 1308, 1308, 837 N.Y.S.2d 815 [4th Dept. 2007], lv denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757 [2007] ; see People v. Snyder, 100 A.D.3d 1367, 1369–1370, 953 N.Y.S.2d 430 [4th Dept. 2012], lv denied 21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1285 [2013]; People v. Blair, 45 A.D.3d 1443, 1445, 846 N.Y.S.2d 847 [4th Dept. 2007], lv denied 10 N.Y.3d 838, 859 N.Y.S.2d 397, 889 N.E.2d 84 [2008] ). We note that it does not appear that defendant was in custody when he spoke to the police, and he was not arrested until a later date. We have reviewed defendant's remaining challenges to defense counsel's representation and conclude that they lack merit. Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).