| People v Sapienza |
| 2010 NY Slip Op 06014 [75 AD3d 768] |
| July 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony C.Sapienza, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered January 28, 2009, upon a verdict convicting defendant of the crimes of criminal sexualact in the first degree, criminal sexual act in the second degree (three counts), rape in the seconddegree (three counts), criminal sexual act in the third degree (five counts), endangering thewelfare of a child (two counts), unlawfully dealing with a child in the first degree (two counts)and sexual abuse in the third degree.
A jury convicted defendant of nine counts pertaining to his sexual abuse of a young female(born in 1991) during the summer of 2005 and eight counts pertaining to his abuse of a secondvictim (born in 1991) during the summer and fall of 2007. County Court imposed an aggregatesentence of 21
The verdict was not against the weight of the evidence. The first victim testified regardingspecific instances when defendant supplied her with alcohol, touched her breasts and vagina,performed oral sex on her, had anal sex with her, engaged in sexual intercourse with her and hadher perform oral sex on him. Regarding the last act, she testified that he used force on oneoccasion. She was 13 and 14 years old when defendant committed these acts against her. Thesecond victim testified that defendant supplied her with alcohol, touched her vagina and [*2]engaged in oral sex with her on multiple occasions when she was16 years old. Defendant testified that he never supplied alcohol to and never engaged in anysexual contact with either victim. Several defense witnesses testified that defendant was neveralone with either victim. Defendant also testified that he was impotent but his girlfriend, who didnot meet him until 2006, testified that while he was unable to sustain an erection some times hecould obtain one at other times. Although each of the victims admitted that she had previouslylied in regard to her sexual contact with defendant, with one of the victims falsely implicatinganother individual as the person with whom she had sex, most of the defense witnesses hadcredibility problems as well. Upon weighing the proof, and giving deference to the jury'sresolution of witness credibility, we find that the weight of the evidence supported the jury'sverdict (see People v Hebert, 68AD3d 1530, 1531-1532 [2009]).
County Court did not abuse its discretion in denying defendant's request for a furtheradjournment to retain new counsel on the eve of trial. Criminal defendants have a constitutionalright to be represented by counsel of their own choosing and "must be accorded a reasonableopportunity to select and retain" such counsel (People v Arroyave, 49 NY2d 264, 270[1980]; see People v Tineo, 64 NY2d 531, 536 [1985]). Nevertheless, "absent exigent orcompelling circumstances, a court may, in the exercise of its discretion, deny a defendant'srequest to substitute counsel made on the eve of or during trial if the defendant has beenaccorded a reasonable opportunity to retain counsel of his [or her] own choosing before thattime" (People v Arroyave, 49 NY2d at 271). In determining whether to grant anadjournment, the court must decide whether an extension has been made necessary by forcesoutside the defendant's control or whether the purported exercise of the defendant's right wouldmerely serve to delay or obstruct the proceedings (see People v Tineo, 64 NY2d at 536;People v Arroyave, 49 NY2d at 271).
Defendant was initially indicted in December 2007 and was represented by retained counsel.Due to a conflict of interest, counsel withdrew shortly before a scheduled trial date. In June2008, when defendant was arraigned on a superceding indictment, he was represented by counselwho was apparently retained for the limited purpose of appearing at arraignment. In July 2008,defendant appeared without counsel and requested an adjournment for the purpose of retainingcounsel. He made a similar request by letter in August 2008. County Court granted bothrequests, emphasizing that defendant needed to obtain counsel because a trial was scheduled forOctober 2008. At a September 2008 appearance, defendant stated that he desired to retaincounsel but was having difficulty doing so. The court directed him to return in several days todiscuss the possibility of representation by the Public Defender. At the appearance a few dayslater, defendant was represented by the Public Defender. At the Public Defender's request, theOctober trial date was adjourned to November 2008 to provide additional time to prepare.
At an appearance four days prior to the scheduled trial date, defendant expressed hisdispleasure with his representation and stated his desire to retain private counsel. County Courtdetermined that no conflict warranted disqualification of the Public Defender and felt thatdefendant's request for new counsel was an attempt to delay the trial. Defendant countered thathis financial situation prevented him from retaining counsel, but noted his attempts to hireseveral attorneys and that he could hire counsel within a week. Noting that defendant could haveretained counsel within the prior five months, the court refused to grant another adjournment.Defendant then sent the court two letters requesting an adjournment based on the PublicDefender's failure to sufficiently prepare for trial. At jury selection, defendant informed the courtthat private counsel was ready to be retained, but would not accept a retainer unless anadjournment was granted to allow him adequate preparation time. Finding the problem was [*3]caused by defendant's own delay, the court denied the request.After the jury was impaneled, private counsel—who still was not actuallyretained—faxed the court a letter seeking a mistrial and an adjournment to allow him toprepare the case and represent defendant at trial. Counsel did not appear in court. Pointing outthat defendant waited from June 2008 until the eve of trial in November 2008 to get even aconditional commitment from retained counsel, the court denied the request. Throughout thetrial, defendant continued to object to what he perceived as the Public Defender's inadequatepreparation. The Public Defender noted the difficulty in preparing for trial when defendantwould not cooperate and refused to heed counsel's advice.
County Court granted defendant repeated adjournments to allow him to retain counsel. Thecourt admonished defendant at each step that counsel would be extremely helpful and should beretained at the earliest possible time. Defendant claimed that his inability to hire counsel was dueto his financial situation and thereby beyond his control but the court disagreed, noting thatdefendant was not incarcerated and had not demonstrated that he lacked the ability to earnmoney to pay an attorney. The court properly exercised its discretion in denying defendant'srequest for an adjournment to retain new counsel on the eve of trial considering that defendanthad been granted several adjournments for that purpose over the prior five months and did notestablish a compelling reason for failing to hire counsel in that time period (see People v Nelson, 1 AD3d 796,797-798 [2003], lv denied 1 NY3d 631 [2004]; People v Williams, 167 AD2d491, 492 [1990], lv denied 77 NY2d 845 [1991]; People v Teen, 165 AD2d 931[1990]).
Defendant received the effective assistance of counsel. Part of his argument concerning thePublic Defender's failure to adequately prepare for trial is based on defendant's self-servingstatements or information outside the record, which we cannot rely upon. The Public Defenderand two assistants performed work on defendant's case. Counsel filed a comprehensive omnibusmotion that resulted in the severance of one count of the indictment and a hearing regardingpossible dismissal on speedy trial grounds. Although defendant complains that counsel onlytalked to him for a total of two hours prior to trial, he admitted that he badgered counsel, tapedphone conversations to use against them and demanded that they sign his proposed witness listcontaining rules about when counsel would contact those individuals. Counsel stated during trialthat he was unsure who the defense would be calling as witnesses because defendant would notcooperate with them. Some of defendant's complaints of lack of preparation were based onunreasonable expectations, such as his anger that counsel had not unearthed defendant's sister'scriminal conviction of which defendant himself was unaware. Defendant complained thatcounsel did not prepare the defense witnesses, but at least one witness acknowledged thatcounsel provided her with a list of questions to review prior to trial. Defendant insisted thatcounsel call certain witnesses, including himself, who were harmful to his case, then complainedabout the testimony that was educed.
While defendant contends that counsel erred in failing to introduce medical evidence ofdefendant's impotence, counsel talked to defendant's physician and determined that he had nottreated defendant for impotency.[FN*]Although defendant had complained of impotency to his physician, counsel could havereasonably determined that introducing medical records would be unhelpful because theyshowed that defendant made this complaint after he had been indicted. [*4]Testimony concerning defendant's impotence was elicited fromdefendant's girlfriend, tending to show that the victims were untruthful and defendant could nothave engaged in some of the alleged acts. Counsel vigorously cross-examined the victims,zealously argued to introduce additional evidence, and called fact and character witnesses totestify. Considering the entirety of the record, and despite defendant's complaints to the contrary,the Public Defender provided defendant with meaningful representation (see People v Towndrow, 62 AD3d1028, 1032 [2009], lv denied 13 NY3d 750 [2009]).
County Court erred in imposing illegal sentences on certain counts. For the countsconcerning the first victim, the court imposed sentences—concurrent to each other butconsecutive to the sentences for the counts pertaining to the second victim—of one yearfor endangering the welfare of a child, one year for unlawfully dealing with a child in the firstdegree, seven years in prison with 10 years of postrelease supervision for each of three counts ofrape in the second degree, seven years in prison with 10 years of postrelease supervision for eachof three counts of criminal sexual act in the second degree, and 15 years in prison with 20 yearsof postrelease supervision for criminal sexual act in the first degree. When these crimes werecommitted in 2005, however, rape in the second degree and criminal sexual act in the seconddegree were not categorized as violent felony offenses and the felony sex offender statute wasnot yet enacted (see L 2007, ch 7, §§ 30, 32, 52). The sentences imposed onthose counts are therefore illegal. While the term of imprisonment imposed for criminal sexualact in the first degree was authorized (see Penal Law § 70.02 [3] [a]), the period ofpostrelease supervision was based on a subdivision of the statute not yet in effect at the time thecrime was committed (see L 2007, ch 7, §§ 33, 52). Accordingly, we remitfor County Court to resentence defendant on the counts of rape in the second degree, criminalsexual act in the second degree and criminal sexual act in the first degree.
For the counts concerning the second victim, County Court imposed consecutive sentencesof one year for endangering the welfare of a child, one year for unlawfully dealing with a child inthe first degree, three months for sexual abuse in the third degree, and 1
Peters, J.P., Rose and Egan Jr., JJ., concur; Lahtinen, J., not taking part.
Ordered that the judgment is modified, on the law, by directing that the sentence on countone of the indictment shall run concurrently with the sentences on counts two through eight andby vacating the sentences imposed on counts 3, 4, 5, 6, 7, 10, 11, 12, 13, 15, 16, 17; matterremitted to the County Court of Warren County for resentencing on those 12 counts; and, as somodified, affirmed.
Footnote *: We recognize that the trial wasunderway before counsel talked to defendant's physician, but the timing of that conversationdoes not affect its substance.