| People v Collins |
| 2011 NY Slip Op 05315 [85 AD3d 1678] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AaronCollins, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered April 24, 2009. The judgment convicted defendant, upon a nonjury verdict, of predatorysexual assault against a child and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the mandatory surcharge to $250 and the crime victim assistance fee to $20 and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict ofpredatory sexual assault against a child (Penal Law § 130.96) and endangering the welfareof a child (§ 260.10 [1]). Contrary to the contention of defendant, his rights to due processand equal protection were not denied when the People prosecuted him for predatory sexualassault against a child rather than rape in the first degree (§ 130.35 [4]; see People v Lawrence, 81 AD3d1326, 1326-1327 [2011]; People v Vicaretti, 54 AD2d 236, 239-240 [1976]). "Thefact that 'under certain circumstances the crimes of rape in the first degree and [predatory sexualassault against a child] may be identical . . . does not . . . amount to adenial of equal protection' or due process" (Lawrence, 81 AD3d at 1326), and weconclude that this is not an exceptional case requiring the People to exercise their broaddiscretion to charge the lesser crime (see id. at 1327; see generally People v Urbaez, 10 NY3d 773, 775 [2008];People v Eboli, 34 NY2d 281, 287-288 [1974]). We further conclude that Supreme Courtproperly denied defendant's request to consider criminal sexual act in the first degree (Penal Law§ 130.50 [4]) as a lesser included offense of predatory sexual assault against a child(see generally People v Discala, 45 NY2d 38, 41-42 [1978]; Lawrence, 81 AD3dat 1326-1327).
Defendant failed to preserve for our review his contention that Penal Law § 130.96 isunconstitutional (see People vAlmarez, 19 AD3d 1005 [2005], amended on rearg 21 AD3d 1438 [2005], lvdenied 6 NY3d 752 [2005], lv dismissed 6 NY3d 773 [2006]) and, in any event, therecord does not establish that the requisite notice was given to the Attorney General with respectto that contention (see Executive Law § 71 [3]; Almarez, 19 AD3d 1005).The further contention of defendant that the court violated Apprendi v New Jersey (530US 466 [2000]) is also unpreserved for our review (see Lawrence, 81 AD3d at 1326; People v Phillips, 56 AD3d 1168[2008], lv denied 11 NY3d 928 [2009]). In any [*2]event,that contention is without merit " 'because [the c]ourt did not increase the penalty for the crime ofwhich defendant had been convicted based upon facts' " that it did not find (Lawrence, 81AD3d at 1327).
We reject defendant's contention that the evidence is legally insufficient to establish that heengaged in " '[o]ral sexual conduct' " (Penal Law § 130.00 [2] [a]; see §130.50 [4]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In addition,viewing the evidence in light of the 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 Bleakley, 69 NY2d at 495).
Contrary to the contention of defendant, he was not denied a fair trial based on ineffectiveassistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). "'[D]efendant failed to demonstrate the lack of a strategic basis for the decision [of defensecounsel not] to allow defendant to testify' " (People v Riley, 292 AD2d 822, 823 [2002],lv denied 98 NY2d 640 [2002]), as well as his decision not to call certain witnesses totestify (see People v Roman, 60AD3d 1416, 1417-1418 [2009], lv denied 12 NY3d 928 [2009]; see generallyPeople v Benevento, 91 NY2d 708, 712 [1998]). Defendant also failed to demonstrate thelack of a strategic basis for defense counsel's failure to make a written motion pursuant to CPL330.30 to set aside the verdict (seegenerally People v Conte, 71 AD3d 1448, 1449 [2010]). "Contrary to defendant'scontention, defense counsel's comments at the sentencing hearing were neither adverse todefendant's position, nor amounted to defense counsel becoming a witness against defendant" (People v Loret, 56 AD3d 1283[2008], lv denied 11 NY3d 927 [2009]; cf. People v Lawrence, 27 AD3d 1091 [2006]). We have examinedthe remaining allegations of ineffective assistance of counsel raised by defendant and concludethat they lack merit. Viewing the evidence, the law and the circumstances of this case in totalityand as of the time of the representation, we conclude that defense counsel provided meaningfulrepresentation (see generally Baldi, 54 NY2d at 147).
The sentence is not unduly harsh or severe. As the People correctly concede, however, themandatory surcharge and crime victim assistance fee should have been based on the statute ineffect at the time of the crimes (see Penal Law § 60.35 [1] [a] [former (i)]; People v Smith, 57 AD3d 1410,1411 [2008]). We therefore modify the judgment accordingly. Present—Smith, J.P.,Fahey, Carni, Lindley and Gorski, JJ.