Opinion
762 KA 21-01012
12-23-2022
The PEOPLE of the State of New York, Respondent, v. Tarl REYNOLDS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM PIXLEY OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM PIXLEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, 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 following a nonjury trial of three counts of sexual abuse in the third degree ( Penal Law § 130.55 ) and one count each of criminal sexual act in the third degree (§ 130.40 [2]) and endangering the welfare of a child (§ 260.10 [1]). Viewing the evidence in light of the elements of the crimes 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 reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" ( People v. McCoy , 100 A.D.3d 1422, 1422, 953 N.Y.S.2d 788 [4th Dept. 2012] [internal quotation marks omitted]). Determination of the instant case rested on the credibility of the witnesses, and "we cannot say that [County Court] failed to give the evidence the weight that it should be accorded" ( People v. Britt , 298 A.D.2d 984, 984, 748 N.Y.S.2d 297 [2002], lv denied 99 N.Y.2d 556, 754 N.Y.S.2d 208, 784 N.E.2d 81 [2002] ).
Contrary to defendant's further contention, the court did not err in denying his request for a missing witness charge. As the party requesting the charge, defendant bore the initial burden of establishing " ‘(1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, (2) that such witness can be expected to testify favorably to the opposing party, and (3) that such party had failed to call the witness to testify’ " ( People v. Lewis-Bush , 204 A.D.3d 1424, 1426, 166 N.Y.S.3d 783 [4th Dept. 2022], lv denied 38 N.Y.3d 1072, 171 N.Y.S.3d 451, 191 N.E.3d 403 [2022], quoting People v. Smith , 33 N.Y.3d 454, 458-459, 128 N.E.3d 649 [2019] ). Defendant failed to meet that initial burden (see generally People v. Desius , 188 A.D.3d 1626, 1629, 135 N.Y.S.3d 214 [4th Dept. 2020], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 151, 167 N.E.3d 1286 [2021] ). Defendant contends, with respect to the multifactor missing witness analysis, that this Court is barred from considering any other factor than the specific factor of the missing witness analysis explicitly referenced by the court when it denied defendant's request for a missing witness charge. We reject that contention (see People v. Garrett , 23 N.Y.3d 878, 885 n. 2, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014], rearg denied 25 N.Y.3d 1215, 16 N.Y.S.3d 508, 37 N.E.3d 1151 [2015] ). Significantly, the court, in its denial of defendant's request, did not explicitly reject the arguments advanced by the People to support denial on the basis of the other factors of the multifactor analysis, and therefore we are not precluded from considering those factors (cf. People v. Garcia , 192 A.D.3d 1463, 1467, 145 N.Y.S.3d 213 [4th Dept. 2021] ).
As defendant correctly concedes, defendant's contention that he was deprived of a fair trial due to instances of prosecutorial misconduct during the prosecutor's summation is unpreserved because defense counsel did not object to any of the purportedly improper comments (see People v. Moore , 198 A.D.3d 1304, 1305, 152 N.Y.S.3d 388 [4th Dept. 2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 37 184 N.E.3d 858 [2022] ). In any event, we reject that contention and conclude that no prosecutorial misconduct occurred. Inasmuch as we conclude that there was no prosecutorial misconduct, we reject defendant's related contention that he was denied effective assistance of counsel based on defense counsel's failure to object to certain alleged improprieties during the prosecutor's summation (see People v. Cordell , 188 A.D.3d 1620, 1621-1622, 135 N.Y.S.3d 546 [4th Dept. 2020], lv denied 36 N.Y.3d 1056, 141 N.Y.S.3d 761, 165 N.E.3d 687 [2021] ).
Finally, we note that the uniform sentence and commitment sheet incorrectly states that defendant was convicted of three counts under Penal Law § 130.22, and thus it must be amended to reflect that these convictions were under Penal Law § 130.55 (see generally People v. McLamore , 191 A.D.3d 1413, 1415, 141 N.Y.S.3d 813 [4th Dept. 2021], lv denied 37 N.Y.3d 958, 147 N.Y.S.3d 508, 170 N.E.3d 382 [2021] ).