| People v Molyneaux |
| 2008 NY Slip Op 02292 [49 AD3d 1220] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James L.Molyneaux, Appellant. (Appeal No. 1.) |
—[*1] Jay D. Carr, Special Prosecutor, Olean, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedNovember 7, 2005. The judgment convicted defendant, upon a jury verdict, of sodomy in the firstdegree and sodomy in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence imposed for sodomy in the firstdegree to a determinate term of imprisonment of 11½ years and as modified the judgmentis affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon ajury verdict of sodomy in the first degree (Penal Law former § 130.50 [1]) and sodomy inthe second degree (former § 130.45). In appeal No. 2, defendant appeals from a judgmentconvicting him upon a jury verdict of sodomy in the first degree (former § 130.50 [1]),sodomy in the second degree (former § 130.45), and sexual abuse in the first degree(§ 130.65 [1]). The two appeals involve two different victims. Contrary to defendant'scontention, County Court properly granted the People's motion to consolidate the indictments fortrial because the counts alleged therein were the same or similar in law (see CPL 200.20[2] [c]; [4]), and defendant failed to demonstrate any prejudice as a result of the consolidation(see People v Shand, 280 AD2d 943 [2001], lv denied 96 NY2d 834 [2001];see generally People v Lane, 56 NY2d 1, 8 [1982]). We reject defendant's furthercontention that the court erred in its Molineux ruling with respect to evidence of a priorbad act by defendant against the victim in appeal No. 1. That evidence was properly admittedbecause it was relevant to show a common scheme or plan by defendant (see People vPaige, 289 AD2d 872, 874 [2001], lv denied 97 NY2d 759 [2002]), and it completedthe narrative of that victim's testimony (see People v Higgins, 12 AD3d 775, 777-778 [2004], lvdenied 4 NY3d 764 [2005]). As the court properly concluded, the probative value of thatevidence outweighed its potential for prejudice (see generally People v Alvino, 71 NY2d233, 242 [1987]).
We reject the contention of defendant that he received ineffective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]). The majority of the allegedinstances of ineffective assistance are based on defendant's disagreements with defense counsel'strial [*2]strategies, and defendant has failed to meet his burden ofestablishing the absence of any legitimate explanation for those strategies (see People vBenevento, 91 NY2d 708, 712-713 [1998]; People v Flores, 84 NY2d 184, 186-187[1994]). The single alleged error by defense counsel in failing to take advantage of the favorableMolineux ruling with respect to a prior bad act by defendant against the victim in appealNo. 2 was not "sufficiently egregious and prejudicial as to compromise [the] defendant's right toa fair trial" (People v Caban, 5NY3d 143, 152 [2005]).
Defendant failed to preserve for our review his contention that the testimony of the People'sexpert witness was improper (see CPL 470.05 [2]), and we decline to exercise our powerto review that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Defendant also failed to preserve for our review his contention that theconviction in each appeal is not based on legally sufficient evidence (see People v Gray,86 NY2d 10, 19 [1995]). The verdict with respect to each appeal is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant furthercontends that the sentence in each appeal should be modified because the court relied onimproper statements in the presentence report. We reject that contention. Defendant was giventhe opportunity to challenge those statements, and he has not demonstrated that the court reliedon any prejudicial information in imposing the sentence in each appeal (see People vHenderson, 305 AD2d 940, 942 [2003], lv denied 100 NY2d 582 [2003]; Peoplev Sumpter, 286 AD2d 450, 452 [2001], lv denied 97 NY2d 658 [2001]).
We agree with defendant, however, that the sentences imposed for each count of sodomy inthe first degree are unduly harsh and severe. Thus, as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [b]), we modify the judgment in appeal No. 1 by reducing thesentence imposed for sodomy in the first degree to a determinate term of imprisonment of11½ years, and we modify the judgment in appeal No. 2 by reducing the sentence imposedfor sodomy in the first degree to an indeterminate term of imprisonment of 6 to 12 years. Wenote that the sentence imposed in appeal No. 1 will continue to run consecutively to the sentenceimposed in appeal No. 2. We further modify the judgment in appeal No. 2 by vacating the periodof postrelease supervision because the offenses were committed prior to the effective date ofPenal Law § 70.45 (see People vMcKnight, 35 AD3d 1162 [2006]; Sumpter, 286 AD2d at 452).Present—Hurlbutt, J.P., Smith, Centra, Green and Gorski, JJ.