Opinion
1053 KA 16–01786
11-09-2018
The PEOPLE of the State of New York, Respondent, v. Jarvis STREETER, also known as Kitty, Defendant–Appellant.
KELIANN M. ARGY, ORCHARD PARK, FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (WENDY EVANS LEHMANN OF COUNSEL), FOR RESPONDENT.
KELIANN M. ARGY, ORCHARD PARK, FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (WENDY EVANS LEHMANN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, predatory sexual assault against a child ( Penal Law § 130.96 ), rape in the third degree (§ 130.25[2] ), and four counts each of compelling prostitution (§ 230.33) and sex trafficking (§ 230.34[1] ), defendant contends that the evidence is legally insufficient to support the convictionof each offense and that the verdict is against the weight of the evidence. Defendant's challenge to the sufficiency of the evidence is not preserved for our review inasmuch as defendant's motion for a trial order of dismissal was not specifically directed at the alleged errors asserted on appeal (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).
In any event, we conclude that defendant's contention lacks merit. The testimony of the witnesses established each element of every offense submitted to the jury, and the witnesses' testimony "was not incredible as a matter of law inasmuch as it was not impossible of belief, i.e., it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448 [4th Dept. 2008], lv denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444 [2009] ). We thus conclude that the evidence is legally sufficient to support the conviction and, 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 conclude that the verdict is not 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] ).
Defendant also contends that he is entitled to dismissal of the count of predatory sexual assault against a child ( Penal Law § 130.96 ) because, before jury deliberations began, County Court dismissed the lesser included count of the indictment charging him with course of sexual conduct against a child in the first degree (§ 130.75; see People v. Slishevsky, 97 A.D.3d 1148, 1151, 948 N.Y.S.2d 497 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 358, 984 N.E.2d 333 [2013] ), and the latter charge is a necessary element of the former. That contention is not preserved for our review inasmuch as "the arguments defendant makes on appeal are entirely different from those he made before and during the trial concerning the presence and submission of [those counts]" ( People v. Cerda, 78 A.D.3d 539, 540, 911 N.Y.S.2d 336 [1st Dept. 2010], lv denied 16 N.Y.3d 829, 921 N.Y.S.2d 193, 946 N.E.2d 181 [2011] ). In any event, dismissal of a lesser included count is not the equivalent of an acquittal (see People v. Wardell, 46 A.D.2d 856, 857, 362 N.Y.S.2d 1 [1st Dept. 1974] ), and thus the pre-deliberation dismissal of the count of course of sexual conduct against a child in the first degree on the ground that it is a lesser included offense did not require dismissal of the greater offense (see generally Cerda, 78 A.D.3d at 540, 911 N.Y.S.2d 336 ).
Although defendant further contends that he was denied a fair trial by prosecutorial misconduct, he failed to preserve that contention for our review "inasmuch as he did not object to any alleged instances" of misconduct ( People v. Black, 137 A.D.3d 1679, 1680, 27 N.Y.S.3d 776 [4th Dept. 2016], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016], reconsideration denied 28 N.Y.3d 1026, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016] ). Regardless, " ‘[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial’ " ( People v. Pendergraph, 150 A.D.3d 1703, 1704, 54 N.Y.S.3d 257 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017] ).
Finally, we reject defendant's contention that he was denied effective assistance of counsel. Defendant has "failed to demonstrate the absence of strategic or other legitimate explanations for defense counsel's alleged shortcomings" ( People v. Dickeson, 84 A.D.3d 1743, 1743, 922 N.Y.S.2d 833 [4th Dept. 2011], lv denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012] ). Additionally, defendant failed to demonstrate that the motions, arguments and objections, "if made, would have been successful" and that defense counsel's failure to make those motions, arguments and objections deprived him of meaningful representation ( People v. Johnson, 118 A.D.3d 1502, 1502, 988 N.Y.S.2d 385 [4th Dept. 2014], lv denied 24 N.Y.3d 1120, 3 N.Y.S.3d 762, 27 N.E.3d 476 [2015] ). Thus, 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 People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).