| People v Lapi |
| 2013 NY Slip Op 02291 [105 AD3d 1084] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JayLapi, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Sarah J. Leszczynski of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered September 14, 2011, upon a verdict convicting defendant of thecrimes of criminal sexual act in the first degree (two counts) and endangering the welfareof a child (two counts).
Defendant was charged by indictment with two counts of criminal sexual act in thefirst degree and two counts of endangering the welfare of a child, stemming fromallegations that, on two consecutive days over a weekend in July 2009, he engaged inanal sexual conduct with a four-year-old relative. The victim reported the conduct to hismother, who then contacted child protective services. Defendant was thereafterinterviewed by the police and, after being apprised of his Miranda rights, gavetwo statements to the police, in one of which he admitted to the alleged conduct. After ajury trial, defendant was convicted as charged and was sentenced, as a second childsexual assault felony offender, to 15 years in prison and 15 years of postreleasesupervision on each criminal sexual act conviction and one year in jail on eachconviction of endangering the welfare of a child, to run concurrently. Defendant nowappeals.
We affirm. Defendant's convictions of criminal sexual act in the first degree were not[*2]against the weight of the evidence.[FN1]As relevant here, in order to convict defendant of that crime, the People were required toprove that he engaged in anal sexual conduct with a victim under the age of 11(see Penal Law § 130.50 [3]; see also Penal Law § 130.00[2] [b]). The elements of that crime were established by defendant's confession, in whichhe admitted to intentionally causing contact between his penis and the four-year-oldvictim's anus on two separate occasions (see People v Artis, 90 AD3d 1240, 1240 [2011], lvdenied 18 NY3d 955 [2012]; People v Cole, 24 AD3d 1021, 1024-1025 [2005], lvdenied 6 NY3d 832 [2006]; see also Penal Law § 130.00 [2][b]).[FN2]While defendant "may not be convicted . . . solely upon evidence of aconfession or admission . . . without additional proof that the offensecharged has been committed" (CPL 60.50), his confession was sufficiently corroboratedby, among other things, the victim's testimony as to the events that occurred, as well asthe testimony of the victim's mother regarding the victim's disclosure of defendant'sconduct (see People vByron, 85 AD3d 1323, 1324-1325 [2011], lv denied 17 NY3d 857[2011]). Defendant's claim that the victim's testimony was not sufficiently detailed isunavailing, as the corroborating proof "need not establish guilt or every detail of thecrime or confession . . . [and] is satisfied by the production of some proof,of whatever weight, that a crime was committed by someone" (People v Flemming, 101 AD3d1483, 1485 [2012] [internal quotation marks and citations omitted]; see People v Johnson, 79AD3d 1264, 1266 [2010], lv denied 16 NY3d 832 [2011]).
Moreover, the jury was entitled to discredit defendant's trial testimony that he did notread the written statement he provided to the police, that the statement was producedunder coercion and that no sexual contact had occurred between him and the victim.Therefore, even if a different verdict would have been reasonable, when we view theevidence in a neutral light and defer to the jury's superior position to determine witnesscredibility, we are satisfied that the verdict was in accord with the weight of the evidence(see People v Wyre, 97AD3d 976, 978 [2012], lv denied 19 NY3d 1030 [2012]; People v Harvey, 96 AD3d1098, 1100 [2012], lv denied 20 NY3d 933 [2012]; People v Lapage, 57 AD3d1233, 1235 [2008]).
We also reject defendant's contention that he was denied the effective assistance of[*3]counsel.[FN3]To establish an ineffective assistance of counsel claim, defendant was required to showthat counsel failed to provide meaningful representation and an "absence of strategic orother legitimate explanations for counsel's allegedly deficient conduct" (People v Caban, 5 NY3d143, 152 [2005] [internal quotation marks and citations omitted]; see People v Nguyen, 90AD3d 1330, 1332 [2011], lv denied 18 NY3d 960 [2012]). First, defendantasserts that counsel erred by failing to object to County Court's decision to allow thevictim—who was six years old at the time of trial—to give sworn testimony.However, we discern no abuse of County Court's discretion in permitting the testimony,after conducting an appropriate inquiry and determining that the victim understood thenature of an oath (see CPL 60.20 [2]; People v Morales, 80 NY2d 450,453 [1992]), appreciated the difference between the truth and a lie and understood theimportance of telling the truth and the consequences of lying (see People vNisoff, 36 NY2d 560, 566 [1975]; People v Mendoza, 49 AD3d 559, 560 [2008], lvdenied 10 NY3d 937 [2008]). As a whole, the victim's voir dire testimonydemonstrated his understanding that he was required to tell the truth (see People v Brown, 89 AD3d1473, 1474 [2011], lv denied 18 NY3d 955 [2012]; People vJohnston, 273 AD2d 514, 517 [2000], lv denied 95 NY2d 935 [2000]) and,therefore, counsel's failure to object did not render his representation ineffective.
Similarly, we find unavailing defendant's argument that trial counsel's failure toobject to the admission of certain testimony denied him the effective assistance ofcounsel. In most of the instances noted by defendant in which counsel failed to object tohearsay testimony, County Court prevented the hearsay statements from being admittedinto evidence. Contrary to defendant's claim on appeal, the Department of SocialServices caseworker who investigated the abuse allegations was not permitted to testifyas to the nature of her conversations with the victim and her investigation report was notadmitted into evidence. As to the testimony of the police officer who took defendant'sstatement, defendant points to no specific hearsay statement to which he now objects,and our review of the record fails to reveal the improper admission of any hearsaystatement that would have deprived defendant of a fair trial.
We are also unpersuaded by defendant's claim that counsel was ineffective due to hisfailure to object to the testimony of the victim's mother regarding the victim's disclosureof the sexual conduct. Under the prompt outcry rule, "evidence that a victim of sexualassault promptly complained about the incident is admissible to corroborate theallegation that an assault took place" (People v Rosario, 17 NY3d 501, 511 [2011] [internalquotation marks and citations omitted]; see People v Perkins, 27 AD3d 890, 892 [2006], lvdenied 6 NY3d 897 [2006]; People v Allen, 13 AD3d 892, 895 [2004], lvdenied 4 NY3d 883 [2005]). " '[P]romptness is a relative concept dependent on thefacts—what might qualify as prompt in one case might not in another' "(People v Rosario, 17 NY3d at 512-513, quoting People v McDaniel, 81NY2d 10, 17 [1993]; see Peoplev Shepherd, 83 AD3d 1298, 1300 [2011], lv denied 17 NY3d 809[2011]). Here, the sexual contact occurred over a weekend during which the victim wasin the care of defendant's mother. The victim returned to his mother's care on a Sundayand disclosed the events to her on the following Friday. Considering the victim's youngage and the familial relationship between the victim and defendant, we agree withCounty Court's determination that the hearsay statements fell within the prompt outcryrule (see Matter of Gregory AA., 20 AD3d [*4]726, 727 [2005]; People v Lapage, 57 AD3d at1236), and the court provided an appropriate instruction limiting the use of the testimony(see People v McCray, 102AD3d 1000, 1009 [2013]; People v Kittles, 23 AD3d 775, 776 [2005], lvdenied 6 NY3d 755 [2005]).
While the record does reveal some errors by counsel, a defendant is not entitled to aperfect trial (see People vJones, 101 AD3d 1241, 1242 [2012]; People v Jordan, 99 AD3d 1109, 1110 [2012], lvdenied 20 NY3d 1012 [2013]). Here, counsel was successful in achieving afavorable Sandoval compromise, provided targeted cross-examinations ofwitnesses, delivered articulate opening and closing statements, sought suppression ofdefendant's incriminating statement and presented a cogent, albeit unsuccessful, defensetheory despite overwhelming evidence of defendant's guilt. Upon our review of therecord, "we discern no single, nor cumulative, error sufficient to deprive defendant of hisright to the effective assistance of counsel" (People v Porter, 82 AD3d 1412, 1416 [2011], lvdenied 16 NY3d 898 [2011]; see People v Wiltshire, 96 AD3d 1227, 1230 [2012]), andwe are satisfied that defendant received meaningful representation (see People vBaldi, 54 NY2d 137, 147 [1981]; People v Harvey, 96 AD3d at 1100-1101).
Defendant's remaining contentions have been considered and are found to be withoutmerit.
Rose, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Inasmuch as defendantpresented evidence after the denial of his trial motion to dismiss and did not renew theapplication at the close of all evidence, his challenge to the legal sufficiency of theevidence is not preserved (seePeople v Lane, 7 NY3d 888, 889 [2006]; People v Fisher, 89 AD3d 1135, 1136 [2011], lvdenied 18 NY3d 883 [2012]). However, our assessment of whether the convictionwas against the weight of the evidence requires us to evaluate whether the elements ofthe crimes charged were adequately proven at trial (see People v Harvey, 96 AD3d 1098, 1099 n [2012], lvdenied 20 NY3d 933 [2012]; People v Fisher, 89 AD3d at 1135).
Footnote 2: Defendant provided twostatements to the police. In the first statement, he denied any intentional contact with thevictim. However, in the second statement, defendant admitted to the alleged conduct, andoffered as an explanation that he had "low self-esteem," "no luck with women" and "nosexual relations with women in three years."
Footnote 3: In reviewing this claim,we address several substantive arguments that defendant asserts on appeal that were notpreserved at trial (see People vMcCray, 102 AD3d 1000, 1008 [2013]).