Opinion
2013–06164 Ind.No. 12–00674
11-12-2020
The PEOPLE, etc., respondent, v. Edward MOLINA, appellant.
Thomas Theophilos, Buffalo, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
Thomas Theophilos, Buffalo, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
RUTH C. BALKIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Lester B. Adler, J.), rendered May 16, 2013, convicting him of course of sexual conduct against a child in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is modified, on the law, by vacating the conviction of endangering the welfare of a child, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was indicted by a grand jury and charged with course of sexual conduct against a child in the first and second degrees and endangering the welfare of a child, based upon allegations that he engaged in sexual conduct with his former paramour's daughter during a period of time between February 1, 2004, and January 21, 2009, when the child was younger than 13 years old. Following a hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. After a jury trial, the defendant was convicted of course of sexual conduct against a child in the first degree and endangering the welfare of a child.
The defendant contends that the charges in the indictment were time-barred and therefore should have been dismissed. We agree with the defendant's contention that the charge of endangering the welfare of a child was time-barred. The statute of limitations as to the crime of endangering the welfare of a child, a class A misdemeanor, is two years (see Penal Law § 260.10[1] ; CPL 30.10[2][c] ). Here, with respect to the count of endangering the welfare of a child, the statute of limitations expired on January 21, 2011, yet the defendant was not arrested until August 26, 2011, with the felony complaint being filed on August 29, 2011. The indictment was filed on June 21, 2012. Accordingly, the charge of endangering the welfare of child should have been dismissed as time-barred (see CPL 30.10[2][c] ; People v. Wildrick, 83 A.D.3d 1455, 1456, 920 N.Y.S.2d 540 ; People v. Hughes, 72 A.D.3d 1121, 1122, 897 N.Y.S.2d 315 ; People v. Heil, 70 A.D.3d 1490, 1491, 894 N.Y.S.2d 664 ). As to the timeliness of the remaining counts of the indictment, the defendant's contentions are unpreserved for appellate review and, in any event, without merit.
The defendant's challenge to the denial of that branch of his omnibus motion which was to suppress his statements to law enforcement officials is unpreserved for appellate review to the extent that it is based upon an alleged violation of the Fourth Amendment of the United States Constitution and the lack of hearing testimony from a particular detective (see CPL 470.05 ; People v. Martin, 50 N.Y.2d 1029, 1031, 431 N.Y.S.2d 689, 409 N.E.2d 1363 ), and we decline to reach those unpreserved contentions in the exercise of our interest of justice jurisdiction. Contrary to the defendant's preserved contention, the statements he made to law enforcement officials at the precinct house were not otherwise subject to suppression, as the record demonstrated that the defendant was properly administered Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) and, thereafter, knowingly, voluntarily, and intelligently waived his Miranda rights (see People v. Sonam, 180 A.D.3d 717, 115 N.Y.S.3d 709 ; People v. Humphrey, 176 A.D.3d 1101, 111 N.Y.S.3d 49 ; People v. Ramos, 164 A.D.3d 1267, 83 N.Y.S.3d 580 ). Accordingly, we agree with the Supreme Court's determination to deny that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
The defendant contends that the Supreme Court erred in denying his for-cause challenge of a prospective juror because, among other things, her statements indicated her inability to be fair and impartial. "[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial" ( People v. Warrington, 28 N.Y.3d 1116, 1119–1120, 45 N.Y.S.3d 345, 68 N.E.3d 70 [internal quotation marks omitted]; see CPL 270.20[1][b] ; People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 ; People v. Johnson, 17 N.Y.3d 752, 753, 929 N.Y.S.2d 16, 952 N.E.2d 1008 ). We agree with the court's denial of the defendant's for-cause challenge to the subject prospective juror, since, upon further inquiry, she unequivocally stated that she would be impartial (see People v. Brims, 145 A.D.3d 1025, 45 N.Y.S.3d 488 ). The defendant's contention that his convictions are entitled to summary reversal because jury notes submitted during deliberations were lost, thereby making appellate review of whether the Supreme Court sufficiently responded to them impossible, is without merit, because the contents of the notes were read into the record at trial (see generally People v. Hall, 32 N.Y.2d 546, 551, 347 N.Y.S.2d 16, 300 N.E.2d 399 ).
The defendant's contention that certain remarks made by the prosecutor in summation deprived him of a fair trial is unpreserved for appellate review, since the defendant either failed to object to the contested remarks or raised only a general objection, and failed to make a timely motion for a mistrial on the specific grounds he raises on appeal (see CPL 470.05[2] ; People v. Willis, 165 A.D.3d 984, 985, 85 N.Y.S.3d 230 ). In any event, the defendant's contention is without merit, as the remarks were either fair comment on the evidence, a fair response to the defense summation, or not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Rodriguez, 175 A.D.3d 721, 105 N.Y.S.3d 307 ; People v. Carter, 152 A.D.3d 786, 56 N.Y.S.3d 471 ).
The defendant's contention that he was deprived of a fair trial due to improper witness bolstering and vouching is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to reach the contention in the exercise of our interest of justice jurisdiction.
The Supreme Court providently exercised its discretion in denying the defendant's request for a missing witness charge in relation to the victim's brother. The People established that the victim's brother was not under their control and would not have provided material testimony favorable to the prosecution (see People v. Alston, 155 A.D.3d 887, 63 N.Y.S.3d 696 ; People v. Roseboro, 127 A.D.3d 998, 6 N.Y.S.3d 629 ).
The defendant's contention that the evidence was legally insufficient to establish his guilt of course of sexual conduct against a child in the first degree is unpreserved for appellate review to the extent that it is based upon establishing proper venue (see CPL 470.05[2] ). 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 ), we find that it was legally sufficient to establish the defendant's guilt of course of sexual conduct against a child in the first degree (see People v. Cooper, 151 A.D.3d 1831, 57 N.Y.S.3d 816 ; People v. Turley, 130 A.D.3d 1574, 14 N.Y.S.3d 857 ; People v. Dunton, 30 A.D.3d 828, 817 N.Y.S.2d 442 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury'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 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to 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 defendant's contention that the evidence before the grand jury was legally insufficient to indict him is not reviewable on this appeal, because the defendant's guilt was proven beyond a reasonable doubt at trial (see CPL 210.30[6] ; People v. LaRoche, 162 A.D.3d 684, 684–685, 78 N.Y.S.3d 222 ).
Contrary to the defendant's contention, his waiver of any potential conflict of interest based upon his assigned counsel's marriage to an assistant district attorney who worked in the Westchester County District Attorney's office was knowingly, intelligently, and voluntarily made after sufficient inquiry by the Supreme Court (see People v. Cortez, 22 N.Y.3d 1061, 981 N.Y.S.2d 651, 4 N.E.3d 952 ; People v. Caban, 70 N.Y.2d 695, 518 N.Y.S.2d 953, 512 N.E.2d 536 ; People v. Gomberg, 38 N.Y.2d 307, 313, 379 N.Y.S.2d 769, 342 N.E.2d 550 ).
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The defendant's contentions that the Supreme Court gave improper jury instructions and responses to the jury's inquiries, improperly admitted evidence of uncharged crimes, and violated his right to a public trial are unpreserved for appellate review and, in any event, without merit.
The defendant's contention regarding the order of protection issued at the time of sentencing is unpreserved for appellate review, and we decline to reach it in the exercise of our interest of justice jurisdiction.
The defendant's remaining contentions are without merit.
BALKIN, J.P., BARROS, CONNOLLY and WOOTEN, JJ., concur.