Opinion
906 KA 21-00981
12-22-2023
The PEOPLE of the State of New York, Respondent, v. Eric EVERETT, Also Known as Kamari Benz, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (AXELLE LECOMTE-MATHEWSON OF COUNSEL), FOR DEFENDANT-APPELLANT. ERIC EVERETT, DEFENDANT-APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (AXELLE LECOMTE-MATHEWSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
ERIC EVERETT, DEFENDANT-APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, OGDEN, GREENWOOD, AND NOWAK, 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 predatory sexual assault against a child ( Penal Law § 130.96 ). Contrary to defendant's contention in his main brief that he was denied effective assistance of counsel because defense counsel violated the attorney-client privilege during pretrial discussions with County Court, we conclude that "defense counsel's remarks were an appropriate effort to ensure that defendant understood the proceedings before rejecting the plea offer and did not constitute a disclosure of confidential information" ( People v. Davidson , 201 A.D.3d 1025, 1027, 159 N.Y.S.3d 569 [3d Dept. 2022] ). We further conclude that "[t]here is nothing in the record to indicate that defendant was deprived of meaningful representation" at any stage of the proceedings ( People v. Eckerd , 161 A.D.3d 1508, 1509, 76 N.Y.S.3d 710 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ). We note that if defendant " ‘can demonstrate facts, not recited in the record, that would raise [a colorable] issue [of ineffective assistance], that issue can be pursued by motion pursuant to CPL 440.10 ’ " ( People v. Barbuto , 126 A.D.3d 1501, 1504, 6 N.Y.S.3d 369 [4th Dept. 2015], lv denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015] ). We also reject defendant's contention in his main brief that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of the crime 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, although a different verdict would not have been unreasonable, it cannot be said that the court failed to give the evidence the weight it should be accorded (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We further conclude, contrary to defendant's contention in his main brief, that defendant's sentence is not unduly harsh or severe. We have reviewed the remaining contentions in the main and pro se supplemental briefs and conclude that none warrants modification or reversal of the judgment.