Opinion
646 KA 22-00353
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Matthew ALMOND, Defendant-Appellant.
JOSEPH A. LOBOSCO, ROCHESTER, FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
JOSEPH A. LOBOSCO, ROCHESTER, FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, 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 nonjury verdict of, inter alia, two counts of predatory sexual assault against a child ( Penal Law § 130.96 ), under a theory of accomplice liability (see § 20.00). Defendant's conviction stems from two incidents in which defendant's paramour engaged in oral sexual conduct with a child less than thirteen years old in defendant's presence, allegedly at defendant's urging.
Defendant contends that the evidence is legally insufficient to support the conviction because the testimony of his paramour accomplice was not supported by the requisite corroborative evidence (see CPL 60.22 [1] ). That contention is not preserved for our review inasmuch as defendant did not renew his motion for a trial order of dismissal after presenting evidence (see People v. Brown , 194 A.D.3d 1398, 1399, 143 N.Y.S.3d 644 [4th Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 688, 172 N.E.3d 800 [2021] ). In any event, we conclude that the testimony of the victim that defendant engaged in sex with the accomplice during one of the incidents, as well as a sworn statement from defendant that he was present during one of the incidents and that he found the idea of the victim being "with" his accomplice "hot," " ‘tend[ed] to connect the defendant with the commission of the crime[s] in such a way as [could] reasonably satisfy the [finder of fact] that the accomplice [was] telling the truth’ " ( People v. Reome , 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ; see CPL 60.22 [1] ; People v. Larregui , 164 A.D.3d 1622, 1623, 83 N.Y.S.3d 784 [4th Dept. 2018], lv denied 32 N.Y.3d 1126, 93 N.Y.S.3d 264, 117 N.E.3d 823 [2018] ). Although the victim was not entirely consistent in his account, also testifying that defendant was "dozing off" during the incidents, we note that " ‘[t]he role of the additional evidence is only to connect the defendant with the commission of the crime[s], not to prove that [the defendant] committed [them]’ " ( Reome , 15 N.Y.3d at 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 ). We further conclude that, " ‘[i]nasmuch as the conviction is supported by legally sufficient evidence, defense counsel was not ineffective in failing to preserve defendant's legal sufficiency challenge for our review’ " ( People v. Rookard , 156 A.D.3d 1394, 1395, 65 N.Y.S.3d 869 [4th Dept. 2017], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] ; see People v. Hill , 147 A.D.3d 1501, 1502, 46 N.Y.S.3d 466 [4th Dept. 2017], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ; People v. Goley , 113 A.D.3d 1083, 1085, 977 N.Y.S.2d 847 [4th Dept. 2014] ).
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 People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). On the record before us, the testimony adduced at trial, and any inconsistencies contained therein, "merely presented issues of credibility for the factfinder to resolve" ( People v. Williams , 179 A.D.3d 1502, 1503, 118 N.Y.S.3d 847 [4th Dept. 2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 635, 149 N.E.3d 396 [2020] ; see People v. Withrow , 170 A.D.3d 1578, 1579, 95 N.Y.S.3d 696 [4th Dept. 2019], lv denied 34 N.Y.3d 940, 109 N.Y.S.3d 740, 133 N.E.3d 444 [2019], reconsideration denied 34 N.Y.3d 1020, 114 N.Y.S.3d 745, 138 N.E.3d 474 [2019] ), and we see no reason to disturb County Court's credibility determinations here.
Defendant failed to object to the court's questioning of the People's witnesses, and therefore we conclude that defendant "failed to preserve for our review his contention that he was denied a fair trial by the court's questioning of witnesses" ( People v. West , 129 A.D.3d 1629, 1630, 12 N.Y.S.3d 455 [4th Dept. 2015], lv denied 26 N.Y.3d 972, 18 N.Y.S.3d 609, 40 N.E.3d 587 [2015] ; see CPL 470.05 [2] ; People v. Charleston , 56 N.Y.2d 886, 887, 453 N.Y.S.2d 399, 438 N.E.2d 1114 [1982] ). In any event, that contention lacks merit. The court was "entitled to question witnesses to clarify testimony and to facilitate the progress of the trial and to elicit relevant and important facts" ( People v. Williams , 107 A.D.3d 1516, 1517, 966 N.Y.S.2d 784 [4th Dept. 2013], lv denied 21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860 [2013] [internal quotation marks omitted]; see People v. Pham , 178 A.D.3d 1438, 1438-1439, 112 N.Y.S.3d 663 [4th Dept. 2019], lv denied 35 N.Y.3d 943, 124 N.Y.S.3d 297, 147 N.E.3d 567 [2020] ; People v. Pollard , 70 A.D.3d 1403, 1405, 894 N.Y.S.2d 691 [4th Dept. 2010], lv denied 14 N.Y.3d 891, 903 N.Y.S.2d 779, 929 N.E.2d 1014 [2010] ), and we conclude that it did not improperly "take[ ] on either the function or appearance of an advocate" ( People v. Arnold , 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140 [2002] ; see People v. Yut Wai Tom , 53 N.Y.2d 44, 57-58, 439 N.Y.S.2d 896, 422 N.E.2d 556 [1981] ).
We have reviewed defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.