Opinion
1133 KA 19-01365
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Gary L. BAILEY, Jr., Defendant-Appellant.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY 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 affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of four counts of sexual abuse in the first degree ( Penal Law § 130.65 [1] ) and five counts of sexual abuse in the third degree (§ 130.55) involving two victims. Defendant contends that he was denied effective assistance of counsel as a result of defense counsel's failure to make a motion to dismiss the indictment based on the denial of his statutory right to a speedy trial (see CPL 30.30 [1] [a] ). A failure of defense counsel to assert a meritorious statutory speedy trial claim "is, by itself, a sufficiently egregious error to render a defendant's representation ineffective" ( People v. Sweet , 79 A.D.3d 1772, 1772, 917 N.Y.S.2d 768 [4th Dept. 2010] [internal quotation marks omitted]; see People v. St. Louis , 41 A.D.3d 897, 898, 838 N.Y.S.2d 215 [3d Dept. 2007] ; see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). We conclude, however, that "[t]he record on appeal is inadequate to enable us to determine whether [a CPL 30.30 ] motion would have been successful and whether defense counsel's failure to make that motion deprived defendant of meaningful representation" ( People v. Youngs , 101 A.D.3d 1589, 1589, 956 N.Y.S.2d 775 [4th Dept. 2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 802, 988 N.E.2d 540 [2013] ; see People v. Oliver , 24 A.D.3d 1305, 1305, 805 N.Y.S.2d 874 [4th Dept. 2005], lv denied 6 N.Y.3d 836, 814 N.Y.S.2d 85, 847 N.E.2d 382 [2006] ; see generally People v. Henderson , 28 N.Y.3d 63, 66, 41 N.Y.S.3d 464, 64 N.E.3d 284 [2016] ). Defendant's contention must be raised, if at all, by way of a motion pursuant to CPL article 440 (see Youngs , 101 A.D.3d at 1589, 956 N.Y.S.2d 775 ; Oliver , 24 A.D.3d at 1305, 805 N.Y.S.2d 874 ).
Defendant's remaining claims of ineffective assistance of counsel are without merit. "To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's conduct ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see Caban , 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ). Defendant contends that defense counsel was ineffective in failing to cross-examine the victims using alleged prior inconsistent statements. Those statements, however, revealed only minor discrepancies with the victims’ trial testimony, and they alleged additional bad acts by defendant. It thus cannot be said that there was no strategic or other legitimate explanation for defense counsel's failure to use those prior statements when cross-examining the victims (see generally Caban , 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ). Likewise, defendant did not establish the absence of a legitimate explanation for defense counsel's failure to object to certain leading questions by the prosecutor (see People v. Robinson , 158 A.D.3d 1263, 1264, 70 N.Y.S.3d 709 [4th Dept. 2018], lv denied 32 N.Y.3d 1067, 89 N.Y.S.3d 122, 113 N.E.3d 956 [2018] ; People v. Pottorff , 145 A.D.3d 1095, 1097-1098, 43 N.Y.S.3d 169 [3d Dept. 2016], lv denied 30 N.Y.3d 1063, 71 N.Y.S.3d 13, 94 N.E.3d 495 [2017] ; People v. Washington , 122 A.D.3d 1406, 1407, 997 N.Y.S.2d 194 [4th Dept. 2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015] ), or for defense counsel's failure to pursue an intoxication defense (see People v. Quinn , 182 A.D.3d 1019, 1020, 120 N.Y.S.3d 917 [4th Dept. 2020], lv denied 35 N.Y.3d 1048, 127 N.Y.S.3d 834, 151 N.E.3d 515 [2020] ; People v. Russell , 133 A.D.3d 1199, 1201, 20 N.Y.S.3d 760 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] ). 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] ).
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 reject defendant's contention that the verdict is 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] ). The sentence is not unduly harsh or severe. Finally, defendant's contention that the People committed a Rosario violation is raised for the first time in his reply brief and is thus not properly before us (see People v. Baxtrum , 170 A.D.3d 1535, 1536, 94 N.Y.S.3d 480 [4th Dept. 2019], lv denied 33 N.Y.3d 1102, 106 N.Y.S.3d 693, 130 N.E.3d 1303 [2019] ; People v. James , 162 A.D.3d 1746, 1747, 80 N.Y.S.3d 600 [4th Dept. 2018], lv denied 32 N.Y.3d 1112, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018] ; People v. Legister , 184 A.D.2d 734, 735, 586 N.Y.S.2d 614 [2d Dept. 1992], lv denied 81 N.Y.2d 764, 594 N.Y.S.2d 726, 610 N.E.2d 399 [1992] ).