Opinion
2014-06-20
The PEOPLE of the State of New York, Respondent, v. Lucas WEST, Defendant–Appellant.
Lucille M. Rignanese, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Lucille M. Rignanese, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ), rape in the third degree (§ 130.25[2] ), and course of sexual conduct against a child in the second degree (§ 130.80[1][b] ). Contrary to defendant's contention, Supreme Court did not err in denying his motion pursuant to CPL 330.30 to set aside the verdict. “ ‘Pursuant to CPL 330.30(1), following the issuance of a verdict and before sentencing a court may set aside a verdict on “[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court” ’ ( People v. Benton, 78 A.D.3d 1545, 1546, 910 N.Y.S.2d 795 [2010],lv. denied16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180 [2011] ). ‘The power granted a Trial Judge is, thus, far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact ..., to reverse or modify a judgment when the verdict is against the weight of the evidence ..., and to reverse “[a]s a matter of discretion in the interest of justice” ’ ( People v. Carter, 63 N.Y.2d 530, 536, 483 N.Y.S.2d 654, 473 N.E.2d 6 [1984] )” ( People v. Rohadfox, 114 A.D.3d 1217, 1218, 979 N.Y.S.2d 758).
Defendant contends that the court erred in denying his CPL 330.30 motion because defense counsel's failure to investigate and pursue an alibi defense constituted ineffective assistance of counsel ( see People v. Taylor, 97 A.D.3d 1139, 1141, 947 N.Y.S.2d 871,lv. denied19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114;see generally People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883,rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671;People v. Henry, 95 N.Y.2d 563, 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112). An alibi defense is “based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time” (Black's Law Dictionary 84 [9th ed. 2009] ) and, here, even if the evidence in question had been admitted at trial, it would not have established an alibi for defendant. “A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” ( Stultz, 2 N.Y.3d at 287, 778 N.Y.S.2d 431, 810 N.E.2d 883), and thus the court properly denied defendant's motion insofar as it alleged ineffective assistance of counsel based on the failure to pursue an alibi defense ( see generally Carter, 63 N.Y.2d at 536, 483 N.Y.S.2d 654, 473 N.E.2d 6).
Defendant also contends that he was denied effective assistance of counsel for a litany of reasons not addressed by the CPL 330.30 motion. To the extent that those instances of alleged ineffective assistance of counsel specified by defendant are based on matters outside the record on appeal, they must be raised by way of a motion pursuant to CPL article 440 ( see generally People v. Russell, 83 A.D.3d 1463, 1465, 919 N.Y.S.2d 721,lv. denied17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103). To the extent that those instances of alleged ineffective assistance are based on defense counsel's failure to make a particular motion or argument, we again note that an attorney's failure to “make a motion or argument that has little or no chance of success” does not amount to ineffective assistance ( Stultz, 2 N.Y.3d at 287, 778 N.Y.S.2d 431, 810 N.E.2d 883). To the extent that defendant contends that defense counsel was ineffective in failing to retain an expert witness, we reject that contention. “ ‘Defendant has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence’ ” ( People v. Jurgensen, 288 A.D.2d 937, 938, 732 N.Y.S.2d 815,lv. denied97 N.Y.2d 684, 738 N.Y.S.2d 299, 764 N.E.2d 403;see People v. Aikey, 94 A.D.3d 1485, 1487, 943 N.Y.S.2d 702,lv. denied19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206). Moreover, 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).
Viewing the evidence in light 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), we further conclude that the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” ( People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829,lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ). Defendant failed to preserve for our review his contention that the indictment was facially deficient ( seeCPL 470.05[2]; see also People v. Soto, 44 N.Y.2d 683, 684, 405 N.Y.S.2d 434, 376 N.E.2d 907), and we decline to exercise our power to address it as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Contrary to defendant's further contention, the court did not err in admitting in evidence testimony of defendant's abuse of the victims that occurred after each victim turned 13 years old ( cf.Penal Law §§ 130.75[1] [b]; 130.80[1][b] ), inasmuch as such evidence “ ‘complete[d] the narrative of the events charged in the indictment ..., and it also provided necessary background information’ ” ( People v. Workman, 56 A.D.3d 1155, 1156, 868 N.Y.S.2d 430,lv. denied12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100;see generally People v. Leeson, 12 N.Y.3d 823, 826–827, 880 N.Y.S.2d 895, 908 N.E.2d 885). Defendant's additional contention that Penal Law §§ 130.75 and 130.80 are unconstitutionally vague is not properly before us. Defendant failed to give the requisite notice to the Attorney General ( seeExecutive Law § 71[3]; People v. Woodard, 83 A.D.3d 1440, 1442, 919 N.Y.S.2d 718,lv. denied17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106), and he failed to preserve that contention for our review ( see Woodard, 83 A.D.3d at 1442, 919 N.Y.S.2d 718).
Finally, we reject the contention of defendant that cumulative errors deprived him of a fair trial.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.