| People v St. Andrews |
| 2011 NY Slip Op 01745 [82 AD3d 1358] |
| March 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KellieSt. Andrews, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered April 3, 2009, upon a verdict convicting defendant of the crimes ofunlawfully dealing with a child in the first degree and endangering the welfare of a child.
Defendant was charged with five counts of unlawfully dealing with a child in the first degree,seven counts of endangering the welfare of a child and five counts of criminal nuisance in thesecond degree in connection with several parties alleged to have occurred on her property whenminors were drinking alcohol and smoking marihuana. Defendant's husband was charged withsimilar crimes and the two were tried jointly, represented by the same counsel. Prior to andduring the trial, County Court dismissed several counts and, with regard to defendant, ultimatelysubmitted to the jury four counts of endangering the welfare of a child and four counts ofunlawfully dealing with a child. The jury convicted her of one count of unlawfully dealing with achild and one count of endangering the welfare of a child, relating to a party that occurred ondefendant's property on April 20-21, 2008. Defendant, who was sentenced to 60 days in jail andthree years of probation, now appeals.
The conviction for unlawfully dealing with a child in the first degree was supported bylegally sufficient evidence. As relevant here, that crime is committed by anyone who "gives or[*2]sells or causes to be given or sold any alcoholic beverage" toa person less than 21 years of age (Penal Law § 260.20 [2]). At trial, competent evidencewas introduced that defendant's 16-year-old son had a party in the field behind the family homeattended by 20 to 40 individuals—most of whom were under 21—and that beer wasconsumed by many in attendance. A minor who attended the party testified that the day beforethe party was held, defendant purchased a case of beer for her son and his friends and "left it in[the truck] for us." While this witness acknowledged never being told by defendant that shepurchased the beer for her son and his friends, it was proven at trial that this beer—a30-pack of cans of Keystone Lite—was made available to anyone at the party and wasentirely consumed by those in attendance. Another minor who attended the party, when asked attrial if he had ever been with defendant when she purchased beer for her son, testified, "Yeah, butshe—like . . . she didn't actually give the beer to [her son]." The witness wenton to describe how defendant left the beer in her vehicle where her son would have access to it.While defendant denied knowing that beer would be available and consumed at the party, sheadmitted being aware that her son would host a gathering and individuals under 21 would attend.She also acknowledged being home throughout the entire evening while the party took place.Moreover, defendant was seen at the party by several witnesses while she was walking in themidst of a number of individuals, some of whom were minors, who were drinking beer andmaking no attempt to conceal it. Viewed in a light most favorable to the prosecution, and givingthe People the benefit of every favorable inference that can be rationally drawn from it, thisevidence, taken as an integrated whole, supports the conclusion that defendant purchased the30-pack of beer for her son's party and was aware that some, if not all of it, would be consumedby young adults under 21 (see People vGregory, 78 AD3d 1246, 1248 [2010]; People v Clairmont, 75 AD3d 920, 923 [2010], lv denied15 NY3d 919 [2010]). Hence, the evidence was legally sufficient to support the charge ofunlawfully dealing with a child in the first degree.
The evidence supported the conviction for endangering the welfare of a child. The witnessesconsistently testified that, while the party was occurring, defendant went outside to give thetelephone to a teenaged boy who received a call. Several witnesses testified that many underageindividuals were drinking alcohol on defendant's property when she came outside, sheapproached the area where they were congregating, and they made no efforts to hide their alcoholconsumption. This evidence was legally sufficient to establish that she endangered the welfare ofseveral minors, who were invited onto her property and were present without their parents orguardians there to supervise them, by permitting them to ingest alcohol. Although somewitnesses called into question whether defendant was able to see anyone drinking, or testifiedthat the youths were not drinking when defendant brought out the phone, we defer to the jury'scredibility determinations in that regard. Thus, that conviction was supported by the weight of theevidence (see People v Strickland,78 AD3d 1210, 1212 [2010]; People v Bush, 75 AD3d 917, 919 [2010], lv denied 15NY3d 919 [2010]).
Defendant is not entitled to a new trial because her defense was not affected by counsel'sjoint representation of defendant and her codefendant husband. Because joint representation maycreate a conflict of interest, "the court must ascertain, on the record, whether the defendant'sdecision to proceed with the attorney is an informed decision" (People v Recupero, 73NY2d 877, 879 [1988]). If a court fails to make such an inquiry, as occurred here, reversal is onlyrequired "where the defendant demonstrates that a significant possibility of a conflict of interestexisted bearing a substantial relationship to the conduct of the defense" (id.). For adefendant to prevail, the conflict of interest must have " 'affected' " the conduct of the defense or" 'operated on' " counsel's representation (People v Adeola, 51 AD3d 811, 812 [2008], [*3]quoting People v Abar, 99 NY2d 406, 409 [2003]; see People v Mainello, 29 AD3d1175, 1177 [2006]).
Here, the indictment alleged that both defendant and her husband were responsible forproviding the alcohol for the party and permitting minors to drink. Thus, the People did not assertdifferent levels of culpability, which would suggest that different theories and defense tacticsshould have been pursued for each codefendant (compare People v Burwell, 53 NY2d849, 851 [1981]). While counsel may have had an incentive to shift blame from the husband todefendant because the People tried to prove that she personally purchased alcohol for the partyand he was more passively involved, counsel did not engage in such a maneuver (comparePeople v Adeola, 51 AD3d at 812).[FN*]Instead, counsel pursued the defense that neither defendant nor her husband was aware thatdrinking was occurring on their property and they did not purchase the alcohol. Defendant arguesthat conflict-free counsel could have aggressively cross-examined her husband to elicitexculpatory testimony, but her husband did not inculpate her in any way and defendant haspresented nothing more than her bare assertion implying that he may have possessed exculpatoryinformation. Despite County Court not having addressed the joint representation, defendant is notentitled to reversal because she has not established that counsel's conflict of interest adverselyaffected or operated on counsel's representation of her (see People v Recupero, 73 NY2dat 879).
Rose, Kavanagh and Egan Jr., JJ., concur; Cardona, P.J., not taking part. Ordered that thejudgment is affirmed, and matter remitted to the County Court of Washington County for furtherproceedings pursuant to CPL 460.50 (5).
Footnote *: Counsel's failure in this regardmay have operated to the disadvantage of defendant's husband, affecting his right to conflict-freecounsel, but defendant can only prevail if her defense was affected.