Opinion
2013-02-27
The PEOPLE, etc., respondent, v. Dwayne BROWN, appellant.
Joseph A. Lobosco, Forest Hills, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso of counsel), for respondent.
Joseph A. Lobosco, Forest Hills, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.), rendered December 8, 2010, convicting him of course of sexual conduct against a child in the first degree and course of sexual conduct against a child in the second degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of course of sexual conduct against a child in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was not deprived of his right to the effective assistance of trial counsel. There is no merit to the defendant's contention that his attorney waived a pretrial suppression hearing. The record shows that the trial court incorporated the suppression issue into the trial ( seeCPL 710.10). In addition, the record as a whole demonstrates that the defendant was afforded the effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
The defendant contends that the County Court improperly curtailed the scope of cross-examination of the complaining witness. In general, a “witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal acts which may affect his [or her] character and show [the witness] to be unworthy of belief, provided the cross-examiner questions [the witness] in good faith and upon a reasonable basis in fact” (Matter of Jerome D., 212 A.D.2d 699, 700, 622 N.Y.S.2d 786;see People v. Daley, 9 A.D.3d 601, 602, 780 N.Y.S.2d 423). Here, any error in connection with the scope of cross-examination was harmless, as there was overwhelming evidence of the defendant's guilt, and no reasonable possibility that the error might have contributed to the defendant's conviction ( see People v. Crimmins, 36 N.Y.2d 230, 237–238, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Wallace, 60 A.D.3d 1268, 1270, 875 N.Y.S.2d 353;People v. Batista, 113 A.D.2d 890, 891, 493 N.Y.S.2d 608).
As the People correctly concede, the defendant's conviction of the count of course of sexual conduct against a child in the second degree must be dismissed. As charged, that count was an inclusory concurrent count of the conviction of course of sexual conduct against a child in the first degree ( seeCPL 1.20[37]; 300.30[4]; People v. Grier, 37 N.Y.2d 847, 848, 378 N.Y.S.2d 37, 340 N.E.2d 471).
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), the prosecution adduced legally sufficient proof of the defendant's guilt of the offense of course of sexual conduct against a child in the first degree ( see People v. Ames, 96 A.D.3d 867, 868, 946 N.Y.S.2d 246;People v. Lupo, 92 A.D.3d 1136, 1137–1138, 939 N.Y.S.2d 601;People v. Stewart, 60 A.D.3d 1111, 1112–1113, 874 N.Y.S.2d 311;People v. Nowinski, 36 A.D.3d 1082, 1083–1084, 827 N.Y.S.2d 356;People v. Frary, 29 A.D.3d 1223, 1224–1225, 815 N.Y.S.2d 334).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1;People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902), we nevertheless accord great deference to the trier of fact's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record, we are satisfied that the verdict of guilt with respect to the count charging course of sexual conduct against a child in the first degree was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).