Opinion
182 KA 17–01382
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Roy LANE, Defendant–Appellant.
MULDOON, GETZ & RESTON, ROCHESTER (JON P. GETZ OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
MULDOON, GETZ & RESTON, ROCHESTER (JON P. GETZ OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him, following a nonjury trial, of sexual abuse in the first degree ( Penal Law § 130.65 [3 ] ), defendant contends that the conviction is not based on legally sufficient evidence and that the verdict is against the weight of the evidence. As defendant correctly concedes, his challenge to the sufficiency of the evidence is not preserved for our review because he failed to renew his motion for a trial order of dismissal after he presented evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ; People v. Raymond, 60 A.D.3d 1388, 1388–1389, 876 N.Y.S.2d 264 [4th Dept. 2009], lv denied 12 N.Y.3d 919, 884 N.Y.S.2d 700, 912 N.E.2d 1081 [2009] ). In any event, we conclude that both contentions lack merit.
Defendant challenges the sufficiency and weight of the evidence on the ground that neither his admissions in statements to the police nor the child victim's unsworn testimony was corroborated, as required by CPL 60.20(3) and 60.50. Defendant's challenges to the sufficiency of the corroboration are unpreserved for our review (see People v. Tyra, 84 A.D.3d 1758, 1759, 922 N.Y.S.2d 909 [4th Dept. 2011], lv denied 17 N.Y.3d 822, 929 N.Y.S.2d 811, 954 N.E.2d 102 [2011] ; People v. Juara, 279 A.D.2d 479, 480, 719 N.Y.S.2d 102 [2d Dept. 2001], lv denied 96 N.Y.2d 831, 729 N.Y.S.2d 452, 754 N.E.2d 212 [2001] ), and lack merit inasmuch as defendant's admissions and the victim's unsworn testimony cross-corroborated each other (see People v. Bitting, 224 A.D.2d 1012, 1012, 637 N.Y.S.2d 820 [4th Dept. 1996], lv denied 88 N.Y.2d 845, 644 N.Y.S.2d 691, 667 N.E.2d 341 [1996] ; People v. Hamelinck, 222 A.D.2d 1024, 1024, 635 N.Y.S.2d 916 [4th Dept. 1995], lv denied 87 N.Y.2d 921, 641 N.Y.S.2d 603, 664 N.E.2d 514 [1996] ; see generally People v. Groff, 71 N.Y.2d 101, 109–110, 524 N.Y.S.2d 13, 518 N.E.2d 908 [1987] ). Moreover, although "prompt outcry evidence alone may not suffice to corroborate the testimony of an unsworn witness, it may be considered by the [factfinder] on the issue of corroboration under CPL 60.20" where, as here, there is other corroborative evidence ( People v. Cordero, 257 A.D.2d 372, 377, 684 N.Y.S.2d 192 [1st Dept. 1999], lv denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099 [1999] ).
To the extent that defendant also contends that County Court erred in allowing the victim to give unsworn testimony, that contention is not preserved for our review and lacks merit. "[T]he record establishes that the victim ‘possesse[d] sufficient intelligence and capacity to justify’ her unsworn testimony" ( Raymond, 60 A.D.3d at 1388, 876 N.Y.S.2d 264, quoting CPL 60.20[2] ; see People v. DelPrince, 70 A.D.3d 1350, 1350, 894 N.Y.S.2d 269 [4th Dept. 2010], lv denied 14 N.Y.3d 840, 901 N.Y.S.2d 146, 927 N.E.2d 567 [2010] ).
The victim's unsworn testimony and defendant's admissions in his statements to the police are legally sufficient to establish that defendant rubbed the victim's groin and inserted a finger into her vagina, and "[t]he inference that defendant was seeking sexual gratification is clearly appropriate where, as here, a nonrelative touches the intimate parts of a child" ( People v. Owens, 149 A.D.3d 1561, 1563, 52 N.Y.S.3d 790 [4th Dept. 2017], lv. denied 30 N.Y.3d 982, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] ). We reject defendant's contention that he did not understand the import of his signed statements to the police inasmuch as "the record does not support a finding that he was ‘unable to understand the meaning of his statements’ " ( People v. Carbonaro, 134 A.D.3d 1543, 1548, 23 N.Y.S.3d 525 [4th Dept. 2015], lv denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216 [2016], reconsideration denied 27 N.Y.3d 1149, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016], quoting People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305 [1967], cert denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157 [1967] ).
We thus conclude that the conviction is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and, 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 further conclude that the verdict is not against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; cf. People v. Wallace, 306 A.D.2d 802, 803, 760 N.Y.S.2d 702 [4th Dept. 2003] ).
"Defendant failed to preserve for our review his contention that his waiver of the right to a jury trial is invalid on the ground that the record fails to establish either that he signed the written waiver in open court ..., or that the waiver was knowing, intelligent, and voluntary" ( 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] ; see People v. Hailey, 128 A.D.3d 1415, 1415–1416, 7 N.Y.S.3d 808 [4th Dept. 2015], lv denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 [2015] ). In any event, that contention lacks merit inasmuch as defendant " ‘waived his right to a jury trial in open court and in writing in accordance with the requirements of N.Y. Constitution, art I, § 2 and CPL 320.10(2)..., and the record establishes that [his] waiver was knowing, voluntary, and intelligent’ " ( Hailey, 128 A.D.3d at 1416, 7 N.Y.S.3d 808 ).
Defendant further contends that he was denied effective assistance of counsel based on numerous alleged failures of defense counsel. To the extent that defendant contends that defense counsel was ineffective in failing to investigate the charges and defendant's psychiatric history and in failing to call an expert witness, that contention is "based on matters outside the record on appeal, [and] must be raised by way of a motion pursuant to CPL article 440" ( People v. West, 118 A.D.3d 1450, 1451, 988 N.Y.S.2d 792 [4th Dept. 2014], lv. denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] ). With respect to the remaining instances of alleged ineffective assistance, 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] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.