| People v Collins |
| 2008 NY Slip Op 08358 [56 AD3d 809] |
| November 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert E.Collins, Appellant. |
—[*1] John W. Muehl, District Attorney, Cooperstown (John F. Lambert of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Otsego County (Burns, J.),rendered May 4, 2007, upon a verdict convicting defendant of three counts of the crime of sexualabuse in the first degree.
Following a jury trial, defendant was convicted of three counts of sexual abuse in the firstdegree in connection with his sexual abuse of a seven-year-old girl. He was thereafter sentencedto an aggregate prison term of 21 years, with three years of postrelease supervision. Defendantnow appeals.
Contrary to defendant's contention, the evidence is legally sufficient to support the convictionof sexual abuse in the first degree (see generally People v Bleakley, 69 NY2d 490[1987]). As relevant here, a person is guilty of sexual abuse in the first degree when he or she hassexual contact with a person less than 11 years old (see Penal Law § 130.65 [3];see also Penal Law § 130.00 [3]). Here, the evidence presented at trial establishedthat the seven-year-old victim was alone in defendant's care for at least six days during the timeof the alleged abuse. The victim testified that defendant abused her on more than one occasion bytaking off her clothes, attempting sexual intercourse and touching her vagina with his hands. Inaddition, DNA evidence established that both the victim's blood and defendant's seminal fluidwere found on items taken from areas in defendant's house in which the victim testified the abusetook place. [*2]Viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]; People v Mitchell, 42 AD3d 758,760 [2007], lv denied 9 NY3d 963 [2007]), there is a valid line of reasoning supportingthe jury's finding that defendant committed sexual abuse in the first degree (see People vBleakley, 69 NY2d at 495). In addition, after weighing this evidence in a neutral light, andaccording deference to the jury's credibility determinations, we are not persuaded by defendant'scontention that minor inconsistencies in the testimony of the victim or her mother rendered theverdict contrary to the weight of the evidence (see id.; People v Carthrens, 171AD2d 387, 392 [1991]).
With regard to County Court's Sandoval ruling, we find that defendant's 1996conviction upon his plea of guilty of petit larceny is probative as to his character for truthfulnessand lack of credibility (see People v Willis, 282 AD2d 882, 883 [2001], lv denied96 NY2d 869 [2001]). County Court properly found that the probative value of this convictionoutweighed any prejudicial effect, despite its remoteness in time (see People v Barton, 13 AD3d721, 724 [2004], lv denied 5 NY3d 785 [2005]).
Defendant next argues that County Court erred in denying his motion to set aside the verdict,which was based upon the allegation that one juror had improperly prejudged his guilt. However,inasmuch as this juror was not identified by defendant, and thus was not questioned about theallegation, and according deference to County Court's credibility determinations, it cannot be saidthat defendant proved by a preponderance of the evidence that improper conduct by a juroraffected a substantial right (see CPL 330.30 [2]; People v Irizarry, 83 NY2d 557,561 [1994]; People v Leonard, 252 AD2d 740, 741 [1998], lv denied 92 NY2d983 [1998]). Accordingly, County Court properly denied the motion.
Defendant's argument that he was denied the effective assistance of counsel is likewisewithout merit. Among other things, defense counsel adequately questioned potential jurorsduring voir dire, raised appropriate objections during trial, made appropriate motions and wasable to secure a hung jury on 9 out of the 12 charges against defendant, which then resulted in thedismissal of those charges. A review of the record as a whole reveals that defendant wasprovided with meaningful representation (see People v Baldi, 54 NY2d 137, 146-147[1981]; People v Ryan, 46 AD3d1125, 1126 [2007], lv denied 10 NY3d 939 [2008]).
Finally, we reject defendant's contentions that the sentence imposed was illegal or harsh andexcessive. Consecutive sentences are legally permissible where, as here, the record supports afinding that the "crimes [were] committed through separate and distinct acts" (People vSalcedo, 92 NY2d 1019, 1021 [1998]; see Penal Law § 70.25 [2]; People vLynch, 291 AD2d 582, 583 [2002]). Moreover, given the nature of defendant's crimes andthe relationship between him and his victim, the sentences imposed here do not represent anabuse of discretion by County Court and defendant has not established that extraordinarycircumstances exist that would warrant a reduction in the interest of justice (see People v Scanlon, 52 AD3d1035, 1040 [2008], lv denied 11 NY3d 741 [2008]; People v Miller, 226AD2d 833, 837 [1996], lv denied 88 NY2d 939 [1996]).
To the extent not specifically addressed herein, defendant's remaining contentions have beenconsidered and found to be without merit.
Spain, J.P., Lahtinen, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.