| People v Kirk |
| 2012 NY Slip Op 04461 [96 AD3d 1354] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Richard G.Kirk, Sr., Appellant. |
—[*1] Richard G. Kirk, Sr., defendant-appellant pro se. Gregory S. Oakes, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (James W. McCarthy, J.), renderedMarch 19, 2008. The judgment convicted defendant, upon a jury verdict, of criminal sexual act inthe first degree (4 counts), sexual abuse in the first degree (11 counts), sexual abuse in the seconddegree (4 counts) and endangering the welfare of a child (6 counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawand as a matter of discretion in the interest of justice by reversing those parts convictingdefendant of endangering the welfare of a child under counts 11-14 and 35-36 of the indictmentand dismissing those counts and by reversing those parts convicting defendant of criminal sexualact in the first degree under counts 2-4, sexual abuse in the first degree under counts 5-6, 19-20,22 and 24 and sexual abuse in the second degree under counts 7 and 26-27 and dismissing thosecounts without prejudice to the People to re-present any appropriate charges under those countsof the indictment to another grand jury, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of 4counts of criminal sexual act in the first degree (Penal Law § 130.50 [3], [4]), 11 counts ofsexual abuse in the first degree (§ 130.65 [3]), 4 counts of sexual abuse in the seconddegree (§ 130.60 [2]), and 6 counts of endangering the welfare of a child (§ 260.10[1]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "[R]esolutionof issues of credibility, as well as the weight to be accorded to the evidence presented, areprimarily questions to be determined by the jury . . . , and the testimony of the[witnesses] with respect to the [disclosure of the sexual abuse] was not so inconsistent orunbelievable as to render it incredible as a matter of law" (People v Witherspoon, 66 AD3d 1456, 1457 [2009], lvdenied 13 NY3d 942 [2010] [internal quotation marks omitted]).
We reject defendant's further contention that County Court erred in permitting testimony[*2]concerning child sexual abuse accommodation syndrome(CSAAS) inasmuch as "[t]he expert witness who testified with respect to CSAAS provided onlya general explanation of the possible behaviors demonstrated by a victim of child sexual abuse,and [she] did not impermissibly offer an opinion on the issue whether defendant had committedthe sex crimes charged in the indictment" (People v Wallace, 60 AD3d 1268, 1270 [2009], lv denied12 NY3d 922 [2009]; see People v Carroll, 95 NY2d 375, 387 [2000]). Contrary todefendant's contention, we conclude that the testimony of his accomplice, who was his girlfriendand the mother of the victims, was sufficiently corroborated by other evidence tending to connectdefendant to the commission of the crimes (see generally People v Reome, 15 NY3d 188, 191-192 [2010]).
Defendant also contends that his original defense counsel was ineffective in failing to seekdismissal of counts 11-14 and 35-36 of the indictment, charging him with endangering thewelfare of a child, as well as counts 25-28 of the indictment, charging him with sexual abuse inthe second degree, because those counts were time-barred. Addressing first counts 25-28, weconclude that defendant's contention is academic to the extent that it is premised upon the failureof original defense counsel to seek dismissal of counts 25 and 28 inasmuch as those counts weredismissed during trial. To the extent that defendant's contention is premised upon the failure oforiginal defense counsel to seek dismissal of counts 26 and 27, we conclude that it involvesmatters outside the record on appeal and thus must be raised by way of a motion pursuant to CPLarticle 440 (see People v Peters, 90AD3d 1507, 1508 [2011]; see also CPL 30.10 [2] [c]; [3] [f]).
Addressing next counts 11-14 and 35-36, we note that the People do not dispute that thosecounts are governed by a two-year statute of limitations (see CPL 30.10 [2] [c]) andshould have been dismissed as time-barred. We therefore modify the judgment accordingly.Under the circumstances of this case, however, we further conclude that defendant was notthereby deprived of effective assistance of counsel (see People v Wise, 49 AD3d 1198, 1200 [2008], lv denied10 NY3d 940 [2008], reconsideration denied 10 NY3d 966 [2008]). To the extent thatthe contention of defendant in his pro se supplemental brief that he was denied effectiveassistance of counsel is based on matters outside the record on appeal, it must be raised by wayof a motion pursuant to CPL article 440 (see e.g. Peters, 90 AD3d at 1508; People v McKnight, 55 AD3d1315, 1317 [2008], lv denied 11 NY3d 927 [2009]), and we conclude on the recordbefore us that defendant received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
We also conclude that there is no merit to the contention of defendant in his main and pro sesupplemental briefs that his indelible right to counsel had attached before he made statements toa police investigator. "The indelible right to counsel attaches in two situations: 'upon thecommencement of formal proceedings, whether or not the defendant has actually retained orrequested a lawyer . . . [, and] where an uncharged individual has actually retained alawyer in the matter at issue or, while in custody, has requested a lawyer in that matter' " (People v Foster, 72 AD3d 1652,1653 [2010], lv dismissed 15 NY3d 750 [2010], quoting People v West, 81NY2d 370, 373-374 [1993]; see Peoplev Lopez, 16 NY3d 375, 380 [2011]). Contrary to defendant's contention, the indelibleright to counsel did not attach by virtue of an attorney-client relationship defendant had in aFamily Court proceeding at that time. "[W]hile an attorney-client relationship formed in onecriminal matter may sometimes bar questioning in another matter in the absence of [defense]counsel . . . , a relationship formed in a civil matter is not entitled to the samedeference" (People v Lewie, 17NY3d 348, 361 [2011]; see Foster, 72 AD3d at 1653-1654). "We further concludethat the determination of the court to credit the testimony of the police officers that defendant didnot invoke his right to counsel before signing the [written statements in question] is entitled todeference . . . , and we see no basis to disturb that determination" (People v Alexander, 51 AD3d1380, 1382 [2008], lv denied 11 NY3d 733 [2008]; see generally People vProchilo, 41 NY2d 759, 761-762 [1977]).
We reject the further contention of defendant in his main brief that his written statements[*3]to the police were involuntary and that the court thereforeerred in refusing to suppress them. " 'The voluntariness of a confession is to be determined byexamining the totality of the circumstances surrounding the confession' " (People v Camacho, 70 AD3d1393, 1394 [2010], lv denied 14 NY3d 886 [2010]; see also People v Kithcart, 85 AD3d1558, 1559 [2011], lv denied 17 NY3d 818 [2011]) and, here, the record of thesuppression hearing supports the court's determination that the statements at issue were notrendered involuntary by reason of any alleged coercion by the police (see People v Peay, 77 AD3d 1309,1310 [2010], lv denied 15 NY3d 955 [2010]; see generally Prochilo, 41 NY2d at761-762).
Defendant's remaining contentions are raised in his pro se supplemental brief. Althoughdefendant's contention that the indictment was duplicitous on its face is not preserved for ourreview (see People v Becoats, 17NY3d 643, 650-651 [2011]), we nevertheless exercise our power to review it as a matter ofdiscretion in the interest of justice (seePeople v Bracewell, 34 AD3d 1197, 1198 [2006]). Counts 2-7, 19-22, 24 and 26-27 ofthe indictment charged defendant with various crimes and alleged that defendant committed oneact "and/or" a second act in furtherance of a single charge. We reject defendant's contention thatthose counts are duplicitous based on the language "and/or" (see People v McGuire, 152AD2d 945, 945 [1989], lv denied 74 NY2d 849 [1989]). We conclude, however, thatcounts 2-7, 19-20, 22, 24 and 26-27 "were rendered duplicitous by the trial evidence tending toestablish the commission of [multiple] criminal acts during the time period[s] specified [withrespect to those counts]" (People vBennett, 52 AD3d 1185, 1186 [2008], lv denied 11 NY3d 734 [2008]; seegenerally People v Keindl, 68 NY2d 410, 417-418 [1986], rearg denied 69 NY2d823 [1987]). We therefore further modify the judgment by reversing those parts convictingdefendant of criminal sexual act in the first degree under counts 2-4, sexual abuse in the firstdegree under counts 5-6, 19-20, 22 and 24 and sexual abuse in the second degree under counts 7and 26-27 of the indictment and dismissing those counts without prejudice to the People tore-present any appropriate charges under those counts of the indictment to another grand jury(see Bennett, 52 AD3d at 1186; Bracewell, 34 AD3d at 1198-1199).
To the extent that defendant preserved for our review his further contention that theindictment gave unreasonably excessive time frames for the alleged offenses (see generallyPeople v Soto, 44 NY2d 683, 684 [1978]), we conclude that it lacks merit. In view of theyoung ages of the victims and what the record indicates was a delay of approximately two yearsin reporting the crimes, the time periods specified in the indictment with respect to the single-actcrimes, i.e., criminal sexual act in the first degree, sexual abuse in the first degree and sexualabuse in the second degree, "provided defendant with adequate notice of the charges against himto enable him to prepare a defense" (People v Coapman, 90 AD3d 1681, 1682 [2011]; see generallyPeople v Morris, 61 NY2d 290, 295-296 [1984]). Although we have dismissed the countscharging defendant with endangering the welfare of a child, we note that endangering the welfareof a child is a continuing crime (seePeople v Furlong, 4 AD3d 839, 841 [2004], lv denied 2 NY3d 739 [2004]), andthus "the usual requirements of specificity with respect to time do not apply" to those counts (People v Green, 17 AD3d 1076,1077 [2005], lv denied 5 NY3d 789 [2005]).
Defendant's contention that he was denied a preliminary hearing is of no moment. " '[T]hereis no constitutional or statutory right to a preliminary hearing . . . , nor is it ajurisdictional predicate to indictment' " (People v Caswell, 56 AD3d 1300, 1302 [2008], lv denied11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, evenassuming, arguendo, that defendant was denied a preliminary hearing, we conclude that thefailure to hold such a hearing does not require dismissal of the indictment or a new trial (seePeople v Bensching, 117 AD2d 971, 972 [1986], lv denied 67 NY2d 939 [1986];see also People v Russ, 292 AD2d 862 [2002], lv denied 98 NY2d 713 [2002], 99NY2d 539 [2002]). In addition, there is no merit to the contention of defendant that he wasdenied his right to testify before the grand jury. Pursuant to CPL 190.50 (5) (a), a defendant "hasa right to be a witness in a grand jury proceeding . . . if, prior to the filing of anyindictment . . . in the matter, he [*4]serves upon thedistrict attorney of the county a written notice making such request." "In order to preserve [that]right[ ] . . . , a defendant must assert [it] at the time and in the manner that theLegislature prescribes" (People vBailey, 90 AD3d 1664, 1665 [2011] [internal quotation marks omitted]). "Therequirements of CPL 190.50 are to be 'strictly enforced' " (id.) and, here, we conclude thatdefendant did not invoke his right to testify before the grand jury pursuant to that statute.Defendant's contention with respect to alleged juror misconduct concerns matters outside therecord on appeal and thus must be raised by way of a motion pursuant to CPL article 440 (see generally People v Carlisle, 50AD3d 1451, 1451 [2008], lv denied 10 NY3d 957 [2008]).
Defendant's further contention that he was deprived of a fair trial based on prosecutorialmisconduct is not preserved for our review (see CPL 470.05 [2]). In any event, thatcontention lacks merit. We agree with defendant that, " '[i]n the face of a prosecutor's knowledgethat a witness'[s] testimony denying that a promise of leniency was given is false, he or she hasno choice but to correct the misstatement and to elicit the truth' " (People v Hendricks, 2 AD3d 1450,1451 [2003], lv denied 2 NY3d 762 [2004], quoting People v Piazza, 48 NY2d151, 162-163 [1979]; see People vMorrice, 61 AD3d 1390, 1391 [2009]). Here, however, there is no evidence thatdefendant's accomplice mischaracterized the terms of her plea agreement or that the prosecutorelicited false testimony. Contrary to defendant's contention, the prosecutor did not impermissiblybolster the testimony of prior witnesses in eliciting testimony from an expert witness with respectto CSAAS. "[I]t is not uncommon for courts to permit expert testimony on . . . thebehavior of . . . victim[s] of sexual abuse" (People v Jerge, 90 AD3d 1486, 1488 [2011]), and the testimony ofthe expert witness "was properly introduced to explain the hesitancy of child abuse victims todisclose the abuse" (People v Donk, 259 AD2d 1018, 1019 [1999], lv denied 93NY2d 924 [1999]; see People vStaples, 61 AD3d 1418, 1418 [2009], lv denied 13 NY3d 800 [2009]). Weconclude that there is no merit to defendant's contention with respect to the remaining allegedinstance of prosecutorial misconduct.
"[D]efendant failed to preserve for our review his contention that the sentence imposedconstituted cruel and unusual punishment" (People v Verbitsky, 90 AD3d 1516 [2011]; see People v Rogers, 63 AD3d1631 [2009], lv denied 13 NY3d 749 [2009]; People v Clark, 61 AD3d 1426, 1427 [2009], lv denied 12NY3d 913 [2009]). In any event, that contention is without merit (see Verbitsky, 90AD3d 1516). Finally, we have reviewed defendant's remaining contentions in his pro sesupplemental brief and conclude that they are without merit. Present—Smith, J.P.,Peradotto, Carni and Sconiers, JJ.