Opinion
364 KA 19-00204
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Christopher C. BROWN, Defendant-Appellant.
LAW OFFICES OF TODD D. BENNETT, HERKIMER (ANTHONY R. ARCARO OF COUNSEL), FOR DEFENDANT-APPELLANT. JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (MICHAEL T. JOHNSON OF COUNSEL), FOR RESPONDENT.
LAW OFFICES OF TODD D. BENNETT, HERKIMER (ANTHONY R. ARCARO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (MICHAEL T. JOHNSON OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., TROUTMAN, 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 jury verdict of two counts each of course of sexual conduct against a child in the first degree ( Penal Law § 130.75 [1] [a] ) and endangering the welfare of a child (§ 260.10 [1]). Defendant contends that he received ineffective assistance of counsel based on defense counsel's failure to object to the testimony of the child victims. We reject that contention inasmuch as any objection to that testimony had " ‘little or no chance of success’ " ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see People v. Johnson , 136 A.D.3d 1338, 1339, 25 N.Y.S.3d 474 [4th Dept. 2016], lv denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ). County Court did not err in allowing the ten-year-old victim to provide sworn testimony (see CPL 60.20 [2] ; People v. Mann , 41 A.D.3d 977, 980, 839 N.Y.S.2d 247 [3d Dept. 2007], lv denied 9 N.Y.3d 924, 844 N.Y.S.2d 179, 875 N.E.2d 898 [2007] ) and the six-year-old victim to provide unsworn testimony (see People v. Lane , 160 A.D.3d 1363, 1364, 76 N.Y.S.3d 299 [4th Dept. 2018] ). We conclude that defendant's remaining allegations of ineffective assistance of counsel are without merit inasmuch as defendant has not " ‘demonstrate[d] the absence of strategic or other legitimate explanations for [defense] counsel's alleged shortcomings’ " ( People v. Hogan , 26 N.Y.3d 779, 785, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016], quoting People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).
Because defendant did not renew his motion for a trial order of dismissal after presenting evidence, he failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of two counts of course of sexual conduct against a child (see People v. Carrasquillo , 71 A.D.3d 1591, 1591, 897 N.Y.S.2d 581 [4th Dept. 2010], lv denied 15 N.Y.3d 803, 908 N.Y.S.2d 162, 934 N.E.2d 896 [2010] ). In any event, defendant's contention is without merit. A "fair reading of the testimony [of the child victims], in context, establishes that the sexual conduct" occurred over a period of at least three months ( People v. Paramore , 288 A.D.2d 53, 53, 732 N.Y.S.2d 410 [1st Dept. 2001], lv denied 97 N.Y.2d 759, 742 N.Y.S.2d 620, 769 N.E.2d 366 [2002] ; see Matter of Anthony R. , 56 A.D.3d 326, 327, 871 N.Y.S.2d 1 [1st Dept. 2008] ). Moreover, we reject defendant's further contention that defense counsel's failure to renew the motion for a trial order of dismissal constituted ineffective assistance (see People v. Washington , 60 A.D.3d 1454, 1455, 875 N.Y.S.2d 732 [4th Dept. 2009], lv denied 12 N.Y.3d 922, 884 N.Y.S.2d 703, 912 N.E.2d 1084 [2009] ).
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] ), we further reject defendant's contention that the verdict is against the weight of the evidence. " ‘Jury resolution of credibility issues, particularly those involving sex-related conduct with a victim of tender years who may have difficulty recalling precise dates and times of the acts, will not be disturbed absent manifest error’ " ( People v. Arnold , 107 A.D.3d 1526, 1528, 967 N.Y.S.2d 801 [4th Dept. 2013], lv denied 22 N.Y.3d 953, 977 N.Y.S.2d 185, 999 N.E.2d 550 [2013] ). We see no basis to disturb the jury's assessment of witness credibility (see People v. Ruiz , 159 A.D.3d 1375, 1375, 73 N.Y.S.3d 308 [4th Dept. 2018] ).