Opinion
1131 KA 17-00112
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Brian K. BAGLEY, Defendant-Appellant.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of escape in the first degree under count six of the indictment and dismissing that count of the indictment and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, predatory sexual assault against a child ( Penal Law § 130.96 ), rape in the second degree (§ 130.30 [1]), rape in the third degree (§ 130.25 [2]), criminal sexual act in the third degree (§ 130.40 [2]), endangering the welfare of a child (§ 260.10 [1]), and escape in the first degree (§ 205.15 [2]), defendant contends that the evidence is legally insufficient to support the conviction of escape in the first degree. We agree. Here, a police officer informed defendant that he was under arrest and attempted to pull him from the driver's seat of a vehicle, at which time defendant drove off, dragging officers across a parking lot. Under these circumstances, we conclude that defendant was not in custody at the time of the alleged escape (see § 205.15 [2]; People v. Lee , 275 A.D.2d 995, 996, 714 N.Y.S.2d 177 [4th Dept. 2000], lv denied 95 N.Y.2d 966, 722 N.Y.S.2d 483, 745 N.E.2d 403 [2000] ; People v. Caffey , 134 A.D.2d 923, 923, 521 N.Y.S.2d 937 [4th Dept. 1987], lv denied 70 N.Y.2d 930, 524 N.Y.S.2d 681, 519 N.E.2d 627 [1987] ). Contrary to defendant's further contention, viewing the evidence in light of the elements of the remaining abovementioned 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] ), and according deference to the jury's credibility determinations (see People v. Romero , 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ), we conclude that the verdict with respect to those crimes 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] ).
Defendant further contends that County Court erred in refusing to suppress the DNA evidence because he was "a little bit" "woozy" while in the hospital and therefore unable to consent to the collection of a DNA sample. We reject that contention. The testimony at the suppression hearing established that defendant stood up from his hospital bed, conversed lucidly with the police, and then gave the officers directions en route to the police station. Upon arrival at the police station, defendant read and signed a DNA consent form. That testimony established that defendant voluntarily agreed to provide a sample for DNA testing (see People v. Osborne , 88 A.D.3d 1284, 1285, 930 N.Y.S.2d 367 [4th Dept. 2011], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012], reconsideration denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012] ; cf. People v. Skardinski , 24 A.D.3d 1207, 1208, 807 N.Y.S.2d 232 [4th Dept. 2005] ).
Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct inasmuch as he failed to object to any of the alleged improprieties during summation (see People v. Larregui , 164 A.D.3d 1622, 1624, 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] ). In any event, "[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial" ( People v. Pendergraph , 150 A.D.3d 1703, 1704, 54 N.Y.S.3d 257 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017] [internal quotation marks omitted]; see Larregui , 164 A.D.3d at 1624-1625, 83 N.Y.S.3d 784 ). We reject defendant's further contention that he was denied effective assistance of counsel. With respect to most of the instances of alleged ineffective assistance, defendant failed to meet his burden of demonstrating the " ‘absence of strategic or other legitimate explanations’ for [defense] counsel's alleged shortcomings" ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Norman , 183 A.D.3d 1240, 1242, 123 N.Y.S.3d 360 [4th Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 855, 151 N.E.3d 537 [2020] ). Defense counsel's representation was not ineffective with respect to the remaining instances, which are based on defense counsel's failure to raise certain objections (see People v. Ashkar , 130 A.D.3d 1568, 1569, 14 N.Y.S.3d 852 [4th Dept. 2015], lv denied 26 N.Y.3d 1142, 32 N.Y.S.3d 56, 51 N.E.3d 567 [2016] ; People v. Lyon , 77 A.D.3d 1338, 1339, 908 N.Y.S.2d 291 [4th Dept. 2010], lv denied 15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ). Rather, upon viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received 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] ).
Defendant also contends that he was denied due process because he did not have the opportunity to address allegations made by the prosecutor during sentencing concerning uncharged instances of child sexual abuse. We reject that contention inasmuch as the record reflects that the court did not consider those allegations, and thus defendant could not have been prejudiced by their introduction at sentencing (see People v. Rogers , 156 A.D.3d 1350, 1350, 65 N.Y.S.3d 830 [4th Dept. 2017], lv denied 31 N.Y.3d 986, 77 N.Y.S.3d 664, 102 N.E.3d 441 [2018] ; People v. Gibbons , 101 A.D.3d 1615, 1616, 956 N.Y.S.2d 720 [4th Dept. 2012] ). Furthermore, the sentence is not unduly harsh or severe.
We have considered defendant's remaining contentions and conclude that they do not require reversal or further modification of the judgment.