| People v Izzo |
| 2013 NY Slip Op 01438 [104 AD3d 964] |
| March 7, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v William R. Izzo III, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered March 28, 2011, upon a verdict convicting defendant of the crimes ofcriminal sexual act in the first degree, sexual abuse in the first degree and endangeringthe welfare of a child.
Defendant, a former friend of the victim's father, lived with the victim (born in 2001)and her family in their home in the Village of Malone, Franklin County forapproximately a month in early 2007. During this time, defendant occasionally babysatthe victim and her four siblings. Several years later, in the spring of 2010, the victimdisclosed that, while living with her family, defendant entered her bedroom where sheshared a bed with her sister and made contact with her genitals using his mouth, handsand penis. Defendant was convicted, after a jury trial, of criminal sexual act in the firstdegree, endangering the welfare of a child and sexual abuse in the first degree andsentenced to concurrent prison terms of 25 years followed by five years of postreleasesupervision for criminal sexual act in the first degree, one year for endangering thewelfare of a child and seven years with three years of postrelease supervision for sexualabuse in the first degree. On defendant's appeal, we affirm.
First, we address defendant's claim that a particular juror should have not have beenexcused for cause, over defense counsel's objection, for having "a state of mind that islikely to preclude him [or her] from rendering an impartial verdict based upon theevidence adduced at the trial" (CPL 270.20 [1] [b]). During voir dire, the juror at issueanswered affirmatively when [*2]asked whether he mighthave a problem deciding a case based upon the testimony of a single child witness.Thereafter, when asked again, along with several other jurors, whether, if the case"comes down to primarily the testimony of one single child they still don't think theycould convict just on that," the subject juror responded, "I don't know."
Generally, "when potential jurors reveal knowledge or opinions reflecting a state ofmind likely to preclude impartial service, they must in some form give unequivocalassurance that they can . . . render an impartial verdict based on theevidence," or else the trial judge should excuse such juror (People v Johnson, 94NY2d 600, 614-616 [2000]). "[A] 'trial court should lean toward disqualifying aprospective juror of dubious impartiality, rather than testing the bounds of discretion' "(People v Scott, 16 NY3d589, 595 [2011], quoting People v Branch, 46 NY2d 645, 651 [1979]),because "even where the court errs on the side of caution, 'the worst the court will havedone . . . is to have replaced one impartial juror with another impartial juror'" (People v Burdo, 256 AD2d 737, 742 [1998], quoting People vCulhane, 33 NY2d 90, 108 n 3 [1973]). Here, the juror's uncertain responses as towhether he could convict on the basis of only one child witness clearly justified CountyCourt's decision to excuse him for cause.
Defendant also argues that the verdict was not supported by legally sufficientevidence[FN1]and was against the weight of the evidence. Given that, in our view, a different verdictwould not have been unreasonable, we must "weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony," while giving great deference to the jury's credibilitydeterminations (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotationmarks and citation omitted]). Here, "defendant does not dispute that evidence of theelements of the crimes charged was presented through the trial testimony of the victim"(People v Smith, 272 AD2d 713, 715 [2000], lv denied 95 NY2d 871[2000]), but instead argues that the victim's testimony required corroboration and, in anyevent, was incredible. Contrary to defendant's contention on appeal, the thennine-year-old victim was competent to testify under oath and such testimony did notrequire corroboration. Indeed, only when a witness is less than nine years old and is notqualified by the court to understand the nature of an oath is the ensuing unsworntestimony deemed insufficient to sustain a conviction absent corroboration (seeCPL 60.20 [2], [3]; People vArtis, 90 AD3d 1240, 1240 [2011], lv denied 18 NY3d 955 [2012]).
Further, our review of the trial transcript persuades us that the jury was justified increditing the victim's testimony and the verdict was not against the weight of theevidence. In arguing that the victim's testimony was unworthy of belief, defendant relieson minor inconsistencies between the victim's testimony, her prior statements and hermother's testimony—such as the name of the social worker that the victim first toldabout the abuse, whether the [*3]victim's family hadaccess to the basement in their home, the precise length of time that defendant stayed atthe victim's house and whether the victim's pajamas were fully off or just unzipped. Wedo not find these inconsistencies material or even particularly significant in light of thisyoung—age five at the time of the abuse—victim's very consistent andspecific description of the actual abuse. "[W]e have long recognized that it is notuncommon for young children to be uncertain and even inconsistent in their trialtestimony" (People vBeauharnois, 64 AD3d 996, 998 [2009], lv denied 13 NY3d 834 [2009][internal quotation marks and citations omitted]). Accordingly, we hold that the verdictwas not against the weight of the evidence (see People v Warner, 69 AD3d 1052, 1054 [2010], lvdenied 14 NY3d 894 [2010]; People v Beauharnois, 64 AD3d at 998-999;People v Bush, 57 AD3d1119, 1120 [2008], lv denied 12 NY3d 756 [2009]).
Next, we reject defendant's argument that he was deprived of the effective assistanceof counsel, as he did not meet his burden of " 'demonstrat[ing] the absence of strategic orother legitimate explanations' for counsel's allegedly deficient conduct" (People v Caban, 5 NY3d143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]).Defendant relies first on defense counsel's failure to introduce prior inconsistentstatements of the victim during cross-examination. As previously discussed, the allegedinconsistencies pertained only to immaterial aspects of the victim's testimony. Further,counsel did cross-examine the victim about some of these statements and she explainedthat she could not remember them. We find the decision not to badger a child victim ofsexual abuse—about largely immaterial inconsistent statements that she professesnot to remember—to be a sound trial strategy, especially in light of "the delicateand often difficult task of cross-examining a child who claimed to have been the victimof a sexual assault" (People vHemingway, 85 AD3d 1299, 1303 [2011]; see People v King, 79 AD3d 1277, 1280 [2010], lvdenied 16 NY3d 860 [2011]). Likewise, defendant has not demonstrated thatcounsel's failure to promptly object to the People's use of leading questions on directexamination of the victim lacked a strategic basis, given that the use of leading questionswhen directly examining a child sex abuse victim is not always improper (see People v Porlier, 55 AD3d1059, 1062 [2008]; Peoplev Mendoza, 49 AD3d 559, 561 [2008], lv denied 10 NY3d 937 [2008]).Defendant's claim that his counsel failed to prepare or call potential witnesses is alsounavailing, as defendant does not proffer any specific advantage of such testimony.Overall, we find that counsel provided meaningful representation to defendant, includingseeking a trial order of dismissal that resulted in dismissal of two counts of theindictment[FN2](see People v Blond, 96AD3d 1149, 1153 [2012], lv denied 19 NY3d 1101 [2012]; People v Muniz, 93 AD3d871, 875-876 [2012], lv denied 19 NY3d 965 [2012]).
Finally, given the nature of the crimes committed against this young, vulnerablevictim, defendant's significant criminal history—which includes a prior sexoffense against a two-year-old female—and his refusal to accept accountability forhis crimes, we cannot find that County Court's decision to sentence him to the maximumallowable sentence was harsh or excessive (see [*4]Penal Law § 70.00 [2]; People v Rhodes, 91 AD3d1185, 1188 [2012], lv denied 19 NY3d 966 [2012]; People v Edwards, 38 AD3d1133, 1134 [2007], lv denied 9 NY3d 864 [2007]). Although defendant wasoffered a plea bargain arrangement that would have resulted in a sentence of seven years,given that the offer was likely inspired by the incentive not to put this young victimthrough the ordeal of a trial, we find that the sentence ultimately imposed was not apenalty for defendant's exercise of his right to a trial, but a fair response to the nature ofthe crime and defendant's criminal history (see People v Blond, 96 AD3d at1153-1154).
Mercure, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Defendant's legalsufficiency arguments are not preserved (see People v Gray, 86 NY2d 10, 19[1995]). We necessarily review the sufficiency of the proof adduced at trial, however, inthe context of resolving defendant's claim that the verdict was against the weight of thecredible evidence (see People vWarner, 69 AD3d 1052, 1053 n 1 [2010], lv denied 14 NY3d 894[2010]).
Footnote 2: Defendant was indictedfor criminal sexual act in the first degree, endangering the welfare of a child, two countsof sexual abuse in the first degree and attempted rape in the first degree. At the close oftheir case, the People consented to dismissal of the attempted rape count and toconsolidation of the two counts of sexual abuse, achieved by dismissal of the fourthcount of the indictment.