| People v Wise |
| 2008 NY Slip Op 02264 [49 AD3d 1198] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gary Wise,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered July 6,2006. The judgment convicted defendant upon a jury verdict of, inter alia, attempted rape in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of endangering the welfare of a child and dismissingcount eight of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a jury trial, of fourcounts of sexual abuse in the first degree (Penal Law § 130.65 [3]), two counts ofattempted sodomy in the first degree (§§ 110.00, former 130.50 [3]), and one counteach of attempted rape in the first degree (§§ 110.00, 130.35 [3]) and endangeringthe welfare of a child (§ 260.10 [1]). We reject the contention of defendant that reversal isrequired because the jury may have convicted him of two unindicted instances of sexual abuseand different jurors may have convicted him based on different acts. Although the testimony ofthe victim concerned more than four incidents involving defendant that may constitute the crimeof sexual abuse in the first degree, County Court's "charge to the jury eliminated any 'danger thatthe jury convicted defendant of an unindicted act or that different jurors convicted defendantbased on different acts' " (People v Gerstner, 270 AD2d 837, 838 [2000]; see People v Caballero, 23 AD3d1031, 1032 [2005], lv denied 6 NY3d 846 [2006]; see generally People v Mathis, 8 AD3d966, 967-968 [2004], lv denied 3 NY3d 709 [2004]).
Defendant further contends that the evidence is legally insufficient to support theconviction of attempted rape and that the verdict convicting him of that crime is against theweight of the evidence. In support thereof, he contends that his actions did not constituteattempted rape because he never removed the victim's underwear, and he knew that one of hisrelatives was likely to return to the bedroom at any time. We reject defendant's contentions. TheCourt of Appeals has written that, "in demarcating punishable attempts from mere preparation tocommit a crime, a 'line has been drawn between those acts which are remote and those which areproximate and near to the consummation' " (People v Acosta, 80 NY2d 665, 670 [1993],quoting People v Rizzo, 246 NY 334, 337 [1927]; see People v Mahboubian, 74NY2d 174, 190-191 [1989]). To constitute an [*2]attempt,"defendant['s] act need not be the final one towards the completion of the offense"(Mahboubian, 74 NY2d at 190 [internal quotation marks omitted]). Here, the victimtestified that defendant told her that he was not going to let her go until he had sex with her. Thevictim also testified that defendant took off his pants, pulled down his underwear, pulled off herpants but not her underwear, pushed her onto a bed and touched her vaginal area beneath herunderwear. Viewing the evidence in the light most favorable to the People, as we must inreviewing defendant's contention with respect to legal sufficiency (see People vThompson, 72 NY2d 410, 413 [1988], rearg denied 73 NY2d 870 [1989]), weconclude that the evidence is legally sufficient to support the conviction of attempted rape(see People v Glover, 107 AD2d 821 [1985], affd 66 NY2d 931 [1985], certdenied 476 US 1161 [1986]; People v Pereau, 64 NY2d 1055, 1057 [1985]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). We further conclude that the verdictis not against the weight of the evidence with respect to that crime (see People v Spagnualo, 5 AD3d995, 996-997 [2004], lv denied 2 NY3d 807 [2004]; People v Cobenais, 301AD2d 958, 958-961 [2003], lv denied 99 NY2d 653 [2003]; see generallyBleakley, 69 NY2d at 495).Defendant further contends that defense counsel should have sought dismissal of the countcharging him with endangering the welfare of a child because that count was time-barred, andthat as a result he was denied his right to effective assistance of counsel. As the People correctlyconcede, that count is governed by the two-year statute of limitations (see CPL 30.10 [2][c]), and it should have been dismissed as time-barred (see People v Rogner, 265 AD2d688 [1999]). We therefore modify the judgment accordingly.
We further conclude under the circumstances of this case, however, that defendant wasnot thereby denied his right to effective assistance of counsel. "[T]he failure to raise a defense asclear-cut and completely dispositive as a statute of limitations . . . , in the absenceof a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right tothe effective assistance of counsel" (People v Turner, 5 NY3d 476, 481 [2005]). Nevertheless, weconclude that defense counsel's single omission did not "so seriously compromise[ ] [the]defendant's right to a fair trial [as to] qualify as ineffective representation" (see People vHobot, 84 NY2d 1021, 1022 [1995]; see generally People v Flores, 84 NY2d 184,187-189 [1994]). Contrary to defendant's contention, the incidents underlying the count ofendangering the welfare of a child, although subject to a Ventimiglia hearing, wouldnevertheless have been admissible as probative of the sexual gratification element of the sexualabuse charges (see generally People vOrtiz, 16 AD3d 831, 833 [2005], lv denied 4 NY3d 889 [2005]; People v Graves, 8 AD3d 1045[2004], lv denied 3 NY3d 674 [2004]; People v Evans, 259 AD2d 629 [1999],lv denied 93 NY2d 924 [1999]), and we note that the count at issue is now beingdismissed as time-barred. Viewing the evidence, the law, and the circumstances of this case, intotality and as of the time of the representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]; People v Clark, 6 AD3d 1066,1067 [2004], lv denied 3 NY3d 638 [2004]; cf. Turner, 5 NY3d at 478-479).We reject the contention of defendant that he did not validly waive his right to be present atsidebar conferences conducted during jury selection and thus was denied his right to be present atthose sidebar conferences. The record establishes that, before the first sidebar conference, thecourt informed defendant that he had the right to be present, and defendant indicated that heunderstood that right. Thereafter, defendant was not present during sidebars. "Defendant's failureto attend sidebar conferences after having been informed of the right to do so constitutes a waiverof that right" (People v Yeldon, 251 AD2d 1047, 1048 [1998], lv denied 92NY2d 908 [1998]; see People vMcHerrin, 19 AD3d 1166 [2005], lv denied 5 NY3d 808 [2005]). Defendantfailed to object to the court's ultimate Sandoval ruling and thus failed to preserve for ourreview his contention that the court did not consider and balance the appropriateSandoval factors (see People vWashington, 38 AD3d 1339 [2007], lv denied 9 NY3d 870 [2007]; People v Alston, 27 AD3d 1141[2006], lv denied 6 NY3d 892 [2006]). In any event, defendant's contention lacks merit.The court allowed the People to question [*3]defendant withrespect to one prior conviction and three immoral or vicious acts, none of which was too remotein time to be pertinent. Moreover, the nature of the conviction and its underlying facts as well asthe three immoral or vicious acts are probative of defendant's credibility and the "willingness. . . [of defendant] to place the advancement of his individual self-interest ahead ofprinciple or of the interests of society" (People v Sandoval, 34 NY2d 371, 377 [1974]).Further, neither the prior conviction nor the other acts suggest that defendant has a propensity tocommit the sex crimes at issue herein (see People v Tirado, 19 AD3d 712 [2005], lv denied 5NY3d 810 [2005]).
Defendant failed to preserve for our review his further contention that the duration of theorder of protection is beyond that permitted by law (see People v Nieves, 2 NY3d 310, 315-317 [2004]). In any event,because defendant failed to include the order of protection in the stipulated record on appeal, wecannot review that contention (see People v Taylor, 231 AD2d 945, 946 [1996], lvdenied 89 NY2d 930 [1996]; People v Restivo, 226 AD2d 1106 [1996], lv denied88 NY2d 883 [1996]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt,Lunn, Green and Gorski, JJ.