Opinion
913 KA 16-01830
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Keith V. WILCOX, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, WINSLOW, BANNISTER, AND DEJOSEPH, 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 two counts of predatory sexual assault against a child ( Penal Law § 130.96 ), two counts of criminal sexual act in the first degree (§ 130.50 [2]), 10 counts of criminal sexual act in the second degree (§ 130.45 [1]), 14 counts of criminal sexual act in the third degree (§ 130.40 [2]), one count of sexual abuse in the first degree (§ 130.65 [4]) and five counts of endangering the welfare of a child (§ 260.10 [1]). We reject defendant's contention that Supreme Court erred in refusing to suppress statements he made to the Child Protective Service (CPS) caseworker who interviewed him while he was in custody inasmuch as the CPS caseworker was not acting as an agent of the police (see People v. Worthy , 109 A.D.3d 1140, 1141, 972 N.Y.S.2d 122 [4th Dept. 2013], lv denied 23 N.Y.3d 970, 988 N.Y.S.2d 577, 11 N.E.3d 727 [2014] ). Although the CPS caseworker was part of a joint task force that included members of law enforcement, he testified that he did not consult with any law enforcement agents regarding his plans to interview defendant. Furthermore, no law enforcement agents were present at that interview, and there was no police involvement in the preparation or performance of the interview (see People v. Rodriguez , 135 A.D.3d 1181, 1185, 23 N.Y.S.3d 692 [3d Dept. 2016], lv denied 28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ; People v. Whitmore , 12 A.D.3d 845, 847, 785 N.Y.S.2d 140 [3d Dept. 2004], lv denied 4 N.Y.3d 769, 892, 792 N.Y.S.2d 12, 825 N.E.2d 144 [2005] ).
Defendant's contention that the jury charge was confusing and improper is unpreserved for our review (see People v. Whitfield , 72 A.D.3d 1610, 1610, 899 N.Y.S.2d 705 [4th Dept. 2010], lv denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010] ), and 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] ). Defendant also contends that the evidence is legally insufficient to support the conviction because the testimony of the victims was incredible as a matter of law. Although defendant failed to preserve his contention for our review (see People v. Gaston , 100 A.D.3d 1463, 1464, 953 N.Y.S.2d 780 [4th Dept. 2012] ), we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence (see People v. Wilson , 175 A.D.3d 1800, 1800, 109 N.Y.S.3d 530 [4th Dept. 2019] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), however, we conclude that the verdict is not 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] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude that "the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded" ( People v. Orta , 12 A.D.3d 1147, 1147, 784 N.Y.S.2d 812 [4th Dept. 2004], lv denied 4 N.Y.3d 801, 795 N.Y.S.2d 176, 828 N.E.2d 92 [2005] ; see People v. Elmore , 175 A.D.3d 1003, 1005, 107 N.Y.S.3d 252 [4th Dept. 2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 277, 142 N.E.3d 1179 [2020] ).
Defendant's contention that he was denied a fair trial by prosecutorial misconduct is not preserved for our review (see CPL 470.05 [2] ; People v. Szatanek , 169 A.D.3d 1448, 1449, 92 N.Y.S.3d 516 [4th Dept. 2019], lv denied 33 N.Y.3d 981, 101 N.Y.S.3d 260, 124 N.E.3d 749 [2019] ), and 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] ).
Defendant contends that he was denied effective assistance of counsel. Defendant's claim that counsel was ineffective for failing to object to the allegedly confusing and misleading jury charge was raised for the first time in his reply brief and therefore is not properly before us (see People v. Daigler , 148 A.D.3d 1685, 1686, 51 N.Y.S.3d 278 [4th Dept. 2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017] ). Several of defendant's other alleged instances of ineffective assistance, e.g., defense counsel's failure to call prospective witnesses that defendant suggested and his failure to introduce into evidence voluminous records that defendant provided, are based on matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440 (see People v. Johnson , 81 A.D.3d 1428, 1428, 917 N.Y.S.2d 487 [4th Dept. 2011], lv denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979 [2011] ). We reject defendant's contention with respect to his remaining claims of ineffective assistance, including his claim that defense counsel was ineffective in failing to object to the alleged instances of prosecutorial misconduct. Here, defendant failed to demonstrate the absence of any strategic or other legitimate explanations for the alleged deficient conduct (see People v. Lundy , 165 A.D.3d 1626, 1627, 85 N.Y.S.3d 665 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 588, 121 N.E.3d 215 [2019] ). On this record, we conclude that " ‘the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation’ " ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see People v. Grant , 160 A.D.3d 1406, 1407, 76 N.Y.S.3d 326 [4th Dept. 2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ).
We reject defendant's contention that the court erred in denying his request for new counsel. Defendant's request for defense counsel to be relieved was based on conclusory assertions of disagreements concerning strategy and of ineffectiveness of counsel, and the request was thus insufficient to require any inquiry by the court (see People v. Barnes , 156 A.D.3d 1417, 1418, 67 N.Y.S.3d 373 [4th Dept. 2017], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 99, 103 N.E.3d 1246 [2018] ; cf. People v. Gibson , 126 A.D.3d 1300, 1301-1302, 6 N.Y.S.3d 198 [4th Dept. 2015] ).
Defendant's contention that he was punished for exercising his right to trial is unpreserved (see People v. Tetro , 181 A.D.3d 1286, 1290, 119 N.Y.S.3d 788 [4th Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 388, 152 N.E.3d 1189 [2020] ). In any event, that contention is without merit inasmuch as " ‘[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 there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant's exercise of the right to a trial’ " ( id. ). Finally, the sentence is not unduly harsh or severe.