| People v Thiel |
| 2015 NY Slip Op 09135 [134 AD3d 1237] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPatrick J. Thiel, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered April 8, 2013, upon a verdict convicting defendant of the crimesof rape in the first degree, criminal sexual act in the first degree and sexual abuse in thefirst degree (four counts).
In March 2012, defendant was charged in a 10-count indictment with rape in the firstdegree (three counts), attempted rape in the first degree, criminal sexual act in the firstdegree (two counts) and sexual abuse in the first degree (four counts) after four children,all under the age of 11, alleged that he engaged in certain sexual conduct with them atdifferent times occurring between June 2011 and September 2011 at a home in the Cityof Elmira, Chemung County.[FN*] Following a jury trial, defendant wasconvicted of one count of rape in the first degree, one count of criminal sexual act in thefirst degree and four counts of sexual abuse in the first degree. Defendant was sentencedto an aggregate prison term of 20 years, followed by 20 years of postrelease supervision.Defendant now appeals.
Defendant contends that the evidence supporting the convictions was legallyinsufficient [*2]and the verdict was against the weight ofthe evidence. We do not agree. First, defendant's legal sufficiency argument is preservedonly with respect to one count of sexual abuse in the first degree based on an incidentoccurring between the dates of April and August 2011, involving victim B. Otherwise,defendant's general motion to dismiss at the close of the proof failed to preserve thisargument for our review (seePeople v Hawkins, 11 NY3d 484, 491 [2008]; People v Finger, 95NY2d 894, 895 [2000]; Peoplev Rodriguez, 121 AD3d 1435, 1436 [2014], lv denied 24 NY3d 1122[2015]). Nevertheless, as there is no preservation requirement with regard to defendant'sclaim that the convictions were against the weight of the evidence, we necessarilydetermine whether each element of the crimes was proven beyond a reasonable doubt aspart of that review (see People vDanielson, 9 NY3d 342, 348-349 [2007]; People v Ballenger, 106 AD3d 1375, 1376 [2013], lvdenied 22 NY3d 995 [2013]). Accordingly, when, as here, a different verdict wouldnot be unreasonable, "we will, 'like the trier of fact below, weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that maybe drawn from the testimony' " (People v Santiago, 118 AD3d 1163, 1164 [2014], lvdenied 24 NY3d 964 [2014], quoting People v Romero, 7 NY3d 633, 643 [2006]).
Relevant here, a person is guilty of rape in the first degree when he or she "engagesin sexual intercourse with another person" who is younger than 11 years old (Penal Law§ 130.35 [3]). To convict defendant of the crime of criminal sexual act inthe first degree, the People were required to prove that defendant "engage[d] in oralsexual conduct or anal sexual conduct with another person" under the age of 11 (PenalLaw § 130.50 [3]). Finally, a person is guilty of sexual abuse in the firstdegree if he or she "subjects [a person less than 11 years old] to sexual contact" (PenalLaw § 130.65 [3]). Here, both the mother and father of victims A and Btestified that defendant, who was a relative, resided with them during a period beginningin January 2010 through September 2011, when the children reported the abuse to themother of victims A and B and her sister, who is the mother of victims C and D. Both themother and father of victims A and B testified that victims C and D often spent the nightat their house, that all four children spent time in defendant's room playing video gamesand that they had observed defendant both within and leaving the room shared by victimsA and B while victims C and D were there.
With reference to specific parts of both her own and defendant's bodies, victim Atestified that while she was in his room playing video games, defendant engaged inconduct that constituted sexual intercourse (see Penal Law § 130.00[1]) and recalled that it hurt during the act and until "the next day after." Further, andagain with specific description and reference to their body parts, she recalled thediscovery of ejaculate on her leg after defendant made contact in a manner thatconstituted "anal sexual conduct" (Penal Law § 130.00 [2] [b]). As to thefour counts of sexual abuse in the first degree, victim A, again describing and referring tospecific parts of her body, testified that defendant touched her "intimate parts" (PenalLaw § 130.00 [3]) with his hands while they were in his room and with hispenis while they were sitting on the living room couch together in September 2011.Victim B, pointing to the area between her legs, testified that she felt pain whendefendant touched her inside her "bad spot" one night while she was sleeping in the roomshared by victims A and B. Victim C testified that defendant touched her "[o]n [her]crotch." They testified that they did not tell anyone what happened because they werescared they would be in trouble. The mother of victims A and B testified that each victimconfirmed that she had been abused when the mother and her sister questioned them inSeptember 2011.
Initially, and to the extent that defendant's argument was preserved, we find that,viewing the evidence in the light most favorable to the People, defendant's conviction ofsexual abuse in the first degree with respect to victim B was supported by legallysufficient evidence [*3]notwithstanding the youngvictim's inability to recall the specific date of the abusive conduct (see People v Johnson, 24AD3d 967, 968 [2005], lv denied 6 NY3d 814 [2006]). Further, we find thateach of the convictions was supported by the weight of the credible evidence.Defendant's primary argument in this regard is that the testimony of victims A, B and Cwas incredible, unbelievable and not corroborated by physical evidence. We do notagree. Despite the passage of time, each of these young victims was able to recall anddescribe defendant and his conduct with specific, graphic detail. They were eachcross-examined and any aspect of their testimony that could have been perceived asinconsistent or improbable was fully explored and presented to the jury, which wasentitled to credit their testimony (see People v Santiago, 118 AD3d at 1164).When we conduct a weight of the evidence review, we defer to the jury's resolution ofcredibility issues and, under the circumstances, we discern no basis to conclude that itsdetermination here was against the weight of the evidence (see id. at 1165; People v Jabaut, 111 AD3d1140, 1144 [2013], lv denied 22 NY3d 1139 [2014]; People v Hayes, 104 AD3d1050, 1055 [2013], lv denied 22 NY3d 1041 [2013]; People vJohnson, 24 AD3d at 968).
Defendant's claim that he was denied the effective assistance of counsel is withoutmerit. A defendant's constitutional right to the effective assistance of counsel "is not andcannot be fixed with precision, but varies according to the particular circumstances ofeach case" (People v Rivera, 71 NY2d 705, 708 [1988]). The constitutionalstandard is met, " '[s]o long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation' " (id., quoting People vBaldi, 54 NY2d 137, 147 [1981]). The test is not whether defendant received"perfect representation," but whether the attorney's assistance was "consistent with [that]of a reasonably competent attorney" (People v Oathout, 21 NY3d 127, 128 [2013] [internalquotation marks and citation omitted]).
Here, defendant contends that counsel was ineffective because he did not pursue aHuntley or Sandoval hearing and did not make a motion pursuant to CPL330.30 to set aside the jury verdict. The failure to request a particular pretrial hearingdoes not necessarily constitute ineffective assistance (see People v Jackson, 48 AD3d 891, 893 [2008], lvdenied 10 NY3d 841 [2008]). To prevail on such a claim, defendant must" 'demonstrate[ ] the absence of strategic or other legitimate explanations' forcounsel's choices" (People vNguyen, 90 AD3d 1330, 1332 [2011], lv denied 18 NY3d 960 [2012],quoting People v Rivera, 71 NY2d at 709). Here, defendant makes no suchshowing; rather, defense counsel, apparently believing the voluntariness of defendant'sstatement was not at issue, waived the Huntley hearing in exchange for an openfile for discovery from the People. He waived the Sandoval hearing afterexpressing a belief that defendant's criminal history was minimal and not related to thecharges here. As for defendant's claim with regard to the posttrial motion, assistance isnot ineffective where counsel "fail[s] to make a motion . . . that has little orno chance of success" (People vCaban, 5 NY3d 143, 152 [2005] [internal quotation marks and citation omitted];see People v Blount, 129AD3d 1303, 1306 [2015]). Moreover, based on the totality of the record, and notingthat counsel successfully argued to have one charge dismissed, one charge reduced andthat defendant was acquitted of two of the asserted charges, we find that defendantreceived meaningful representation (see People v Bahr, 96 AD3d 1165, 1166-1167 [2012],lv denied 19 NY3d 1024 [2012]).
Finally, we reject defendant's contention that the sentences were harsh and excessive.Given the circumstances presented, we find no extraordinary circumstances or an abuseof discretion to warrant a reduction of the sentences (see People v Lord, 128 AD3d 1277, 1279 [2015]), whichwere less than the maximum allowed for the class B and class D violent felonies(see Penal Law § 70.02 [3] [a], [c]).
[*4] Lahtinen, J.P., Egan Jr. and Devine, JJ., concur.Ordered that the judgment is affirmed.
Footnote *:The children were bornin 2001 (hereinafter victim A), April 2003 (hereinafter victim B), February 2003(hereinafter victim C), and 2005 (hereinafter victim D). Defendant was acquitted on thecharge involving victim D.