| People v O'Daniel |
| 2013 NY Slip Op 02426 [105 AD3d 1144] |
| April 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWilliam O'Daniel, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered March 28, 2011, upon a verdict convicting defendant of the crimes of rapein the first degree (two counts), attempted rape in the first degree, sexual abuse in thefirst degree (two counts) and endangering the welfare of a child (two counts).
In June 2009, defendant was indicted and charged with rape in the first degree (twocounts), attempted rape in the first degree, sexual abuse in the first degree (two counts)and endangering the welfare of a child.[FN1]The charges stemmed from a series of sexual acts—occurring over the course ofthree evenings in 2005—that were perpetrated by defendant against the thenfive-year-old daughter (hereinafter victim A) of his live-in girlfriend. These acts tookplace in the bedroom that victim A shared with her then three-year-old sister (hereinaftervictim B), the latter of whom was defendant's biological daughter, and occurred duringwhat victim A [*2]described as "snuggle time."[FN2]
Victim A had been warned by defendant "not to tell anyone" but, following the thirdincident, she "crept out" of her bedroom and told her mother, who was in the livingroom, that defendant had touched her. The mother confronted defendant, who denied thatanything inappropriate had transpired, and the mother believed him. Eventually, themother moved out of the residence, leaving her daughters behind with defendant. Shortlythereafter, victim A went to live with her biological father and, in January 2009,following a good touch/bad touch presentation in school, victim A told her stepmotherand father what defendant had done to her. Victim A's father promptly notified lawenforcement, and the underlying charges ensued.
When defendant was arraigned in July 2009, he appeared with attorney Keith Bruno,who was standing in for defendant's retained counsel, James Martineau Jr. As Bruno, theAssistant District Attorney and County Court (Ryan, J.) were discussing defendant'srelease status, defendant slumped to the floor and was transported to a local emergencyroom for evaluation. While en route to the hospital and/or awaiting treatment, defendantmade various statements to the State Trooper who accompanied him, includingexpressing a desire to kill himself and questioning "how they could have physicalevidence against him because [victim A] ha[d] everything intact."
Following successive adjournments during the spring and summer of 2010, two ofwhich were occasioned by Martineau's ongoing health problems, County Court (McGill,J.) suggested that Martineau seek out a second chair in advance of the rescheduledOctober 2010 trial date. Bruno agreed to serve in that capacity and, followingMartineau's hospitalization, also agreed to handle defendant's trial. At defendant'srequest, Bruno twice sought further adjournment of the trial date. County Court deniedthe respective motions and, following a jury trial, defendant was convicted as chargedand sentenced to an aggregate prison term of 19½ years in prison followed by aperiod of postrelease supervision. Defendant now appeals.
We affirm. Initially, we reject defendant's assertion that he was denied his statutoryright to counsel (see CPL 170.10 [3]) at the October 5, 2010 pretrial conference.On that date, Bruno appeared on defendant's behalf and, after advising County Court ofthe underlying arrangement with Martineau, indicated that he had reviewed defendant's"entire file" and discussed "at length"—with both defendant and defendant'sfather—the terms of the People's pending offer, including the "potentialconsequences of going to trial" and defendant's sentencing exposure, "as well as [the]proposed terms and conditions of [the] probation" period associated therewith. Undersuch circumstances, defendant's claim that he lacked representation at the pretrialconference and, thus, was forced to proceed pro se and evaluate the plea offer withoutthe assistance of counsel is patently meritless.
Defendant's related claims—that he was denied the right to counsel of hischoosing and that County Court both impermissibly interfered with an existingattorney-client relationship and abused its discretion in denying defendant's request forfurther adjournments—are equally [*3]unpersuasive. To be sure, "[c]riminal defendants have aconstitutional right to be represented by counsel of their own choosing and must beaccorded a reasonable opportunity to select and retain such counsel" (People v Sapienza, 75 AD3d768, 770 [2010] [internal quotation marks and citation omitted]). However, "thisright is qualified in the sense that a defendant may not employ such right as a means todelay judicial proceedings" (People v Arroyave, 49 NY2d 264, 271 [1980]; see People v Brown, 101AD3d 1627, 1628 [2012]).
Bruno, who was no stranger to defendant, entered the case at Martineau's requestand, ultimately, assumed the role of trial counsel due to Martineau's ongoing healthissues. Although defendant now contends that this turn of events effectively denied himthe right to be represented by counsel of his choosing, noticeably absent from the recordis any indication that defendant was unwilling to proceed to trial with Bruno as counselor, more to the point, that he sought further adjournment of the trial date for the expresspurpose of retaining another attorney. Rather, defendant, who was out on bail pendingtrial, instructed Bruno to seek two further adjournments in order to give Bruno more timeto prepare. Bruno, however, voiced no concerns as to his readiness to proceed. To thecontrary, Bruno indicated—as noted previously—that he had revieweddefendant's "entire file," met with defendant "quite frequently" and was "confident" that,if the trial proceeded as scheduled, he would be "prepared and ready to go forward."Under these circumstances, we cannot say that County Court either interfered with anexisting attorney-client relationship (compare People v Jackson, 216 AD2d 323,323-324 [1995], lv denied 86 NY2d 843 [1995]), denied defendant a reasonableopportunity to retain counsel of his choosing (compare People v Branham, 59 AD3d 244, 245 [2009]; People v Mack, 39 AD3d882, 883-886 [2007]) or abused its discretion in denying defendant's request forfurther adjournments (seePeople v Mao-Sheng Lin, 50 AD3d 1251, 1253 [2008], lv denied 10NY3d 961 [2008]; People vDashnaw, 37 AD3d 860, 862-863 [2007], lv denied 8 NY3d 945[2007]).
Nor do we find merit to defendant's claim that he was denied the effective assistanceof counsel. Bruno made cogent opening and closing statements, effectivelycross-examined the People's witnesses, made appropriate objections and motionsthroughout the course of the trial and presented a viable—albeit ultimatelyunsuccessful—defense. Under these circumstances, we are satisfied that defendantreceived meaningful representation (see People v Jenkins, 90 AD3d 1326, 1330 [2011], lvdenied 18 NY3d 958 [2012]; People v Underdue, 89 AD3d 1132, 1134 [2011], lvdenied 19 NY3d 969 [2012]; People v Phelan, 82 AD3d 1279, 1282-1283 [2011], lvdenied 17 NY3d 799 [2011]).
As for defendant's assertion that the underlying verdict is against the weight of theevidence, we disagree. Victim A testified at length (and in great detail) regarding the actscommitted by defendant—including where the crimes occurred, what she waswearing, what defendant was wearing, how she, victim B and defendant were positionedrelative to each other in the bed in which the offending conduct took place and theprecise manner in which defendant touched her—and described her unsuccessfulattempts to escape defendant's advances. Additionally, the People adduced medicalevidence of internal scarring that was consistent with victim A's recitation of the actscommitted by defendant.[FN3]Although cross-examination of victim [*4]A revealedsome inconsistencies regarding precisely what time of year the underlying crimes tookplace and defendant presented evidence from which the jury reasonably could haveconcluded that such crimes did not occur within the period of time specified in theamended indictment, the jury plainly chose to credit victim A's testimony—despitean attempt by defendant's mother to portray the child as a liar—and we discern nobasis upon which to disturb the jury's determination in this regard. Defendant's remainingcontentions, including his assertion that the sentence imposed was harsh and excessive,have been examined and found to be lacking in merit.[FN4]
Peters, P.J., Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The indictmentsubsequently was amended with respect to the period of time during which the actsalleged therein took place.
Footnote 2: The sole count in theindictment pertaining to victim B charged defendant with endangering the welfare of achild, which was premised upon the allegation that defendant engaged in sexual conductwith victim A while in the presence of victim B.
Footnote 3: Contrary to defendant'sassertion, the record makes clear that the People's expert witness did not base her medicalopinion upon a hearsay statement made by victim A's father (compare People vSugden, 35 NY2d 453, 460-461 [1974]).
Footnote 4: Despite the suggestionmade at oral argument, we discern no illegality in defendant's sentence.