| People v Gonzalez |
| 2009 NY Slip Op 03578 [62 AD3d 1263] |
| May 1, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jesus M.Gonzalez, Appellant. |
—[*1] Jesus M. Gonzalez, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered February 26, 2004. The judgment convicted defendant, upon a nonjury verdict, ofattempted sodomy in the first degree, attempted sodomy in the second degree, attempted sexualabuse in the first degree and attempted endangering the welfare of a vulnerable elderly person inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof, inter alia, attempted sodomy in the first degree (Penal Law § 110.00, former §130.50 [2]), attempted sodomy in the second degree (§ 110.00, former § 130.45 [2])and attempted sexual abuse in the first degree (§§ 110.00, 130.65 [2]). Theconviction arises out of defendant's conduct as a resident aide at a residential facility for personswith dementia and Alzheimer's disease. Defendant contends that the evidence is legallyinsufficient to support the conviction of attempted sodomy in the first and second degrees andattempted sexual abuse in the first degree because there was no evidence of the victim's physicalhelplessness or defendant's intent to commit sodomy. By failing to renew his motion for a trialorder of dismissal after presenting evidence, defendant failed to preserve that contention for ourreview (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]). In any event, defendant's contention is without merit. The evidence, viewed in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legallysufficient to establish that the victim was " '[p]hysically helpless' " (Penal Law § 130.00[7]; see former § 130.50 [2]; § 130.65 [2]), i.e., that she had advancedAlzheimer's disease and was "physically unable to communicate unwillingness to an act"(§ 130.00 [7]; see People v Green, 298 AD2d 143, 144 [2002], lv denied99 NY2d 559 [2002]). The evidence is also legally sufficient with respect to defendant's intent tocommit sodomy. A resident aide supervisor who unlocked the victim's door and observeddefendant with the victim provided explicit testimony concerning defendant's sexual acts withthe victim, thus establishing that defendant "engage[d] in conduct which tend[ed] to effect thecommission" of the crimes (Penal Law § 110.00; see also People v Garayua, 268AD2d 283 [2000], lv denied 95 NY2d 796 [2000]). Viewing the evidence in light of the[*2]elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to the contention of defendant, Supreme Court properly allowed several witnessesto testify with respect to prior incidents in which he was found in the presence of patients withhis pants undone. Defendant had told the police that his pants had fallen down in the presence ofthe victim when the button on his pants "suddenly broke," and the evidence of the prior incidentswas thus relevant to establish the absence of mistake or accident, as well as intent (see People v Brown, 57 AD3d1461, 1463 [2008]; see generally People v Allweiss, 48 NY2d 40, 46-47 [1979];People v Molineux, 168 NY 264, 293-294 [1901]). We reject the further contention ofdefendant that he was denied effective assistance of counsel based on defense counsel's failure torenew the motion for a trial order of dismissal inasmuch as that motion would have beenunsuccessful (see People vForsythe, 59 AD3d 1121, 1123-1124 [2009]). Contrary to the contention of defendant inhis pro se supplemental brief, defense counsel's failure to call certain witnesses was a matter ofstrategy and also did not constitute ineffective assistance of counsel (see People v Botting, 8 AD3d1064, 1066 [2004], lv denied 3 NY3d 671 [2004]; People v Hernandez, 295AD2d 989 [2002], lv denied 98 NY2d 711 [2002]; People v Brooks, 283 AD2d367 [2001], lv denied 96 NY2d 916 [2001]). Viewing the evidence, the law, and thecircumstances of this case as a whole and as of the time of the representation, we conclude thatdefendant received effective assistance of counsel (see generally People v Baldi, 54NY2d 137, 147 [1981]). The sentence is not unduly harsh or severe. We have examined theremaining contentions of defendant in his pro se supplemental brief and conclude that they arewithout merit. Present—Hurlbutt, J.P., Martoche, Centra, Pine and Gorski, JJ.