| People v Wright |
| 2013 NY Slip Op 04138 [107 AD3d 1398] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LukeJ. Wright, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered May 24, 2011. The judgment convicted defendant, upon a jury verdict, ofassault in the first degree (two counts), predatory sexual assault, rape in the first degree,criminal sexual act in the first degree, rape in the second degree, criminal sexual act inthe second degree, incest in the third degree, unlawful imprisonment in the first degree asa hate crime and endangering the welfare of an incompetent or physically disabledperson.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reducing the conviction ofassault in the first degree (Penal Law § 120.10 [1]) under count 3 of the indictmentto assault in the second degree (§ 120.05 [2]), reducing the conviction of unlawfulimprisonment in the first degree as a hate crime (§§ 485.05 [1] [b]; 135.10)under count 10 of the indictment to unlawful imprisonment in the first degree (§135.10), and vacating the sentences imposed on those counts, and by vacating thesentence imposed for the conviction of rape in the second degree (§ 130.30 [2])under count 7 of the indictment and as modified the judgment is affirmed, and the matteris remitted to Erie County Court for sentencing on the conviction of assault in the seconddegree and unlawful imprisonment in the first degree and resentencing on the convictionof rape in the second degree.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the first degree (two counts) (Penal Law § 120.10 [1]);predatory sexual assault (§ 130.95 [1] [b]) with aggravated sexual abuse in the firstdegree (§ 130.70 [1] [a]) as the underlying crime; one count each of rape andcriminal sexual act in the first degree (§§ 130.35 [1]; 130.50 [1] [forciblecompulsion]) and rape and criminal sexual act in the second degree (§§130.30 [2]; 130.45 [2] [mentally disabled victim]); incest in the third degree (§255.25); unlawful imprisonment in the first degree as a hate crime (§§135.10, 485.05 [1] [b]); and endangering the welfare of an incompetent or physicallydisabled person (§ 260.25). We reject defendant's contention that County Courterred in determining after a hearing that defendant was not an incapacitated person(see CPL 730.10 [1]). We conclude that the prosecution met its burden ofestablishing by a preponderance of the evidence that defendant possessed the capacity tounderstand the nature of the proceedings against him and that he was capable of assistingin his [*2]own defense (see People v Mendez, 1 NY3d15, 19-20 [2003]; People vSurdis, 77 AD3d 1018, 1018 [2010], lv denied 16 NY3d 800 [2011]).Defendant was examined by two forensic psychiatrists, each of whom concluded thatdefendant was competent to stand trial, and the hearing court's competency ruling isentitled to great deference (see Surdis, 77 AD3d at 1018-1019; People vBrow, 255 AD2d 904, 904-905 [1998]). We reject defendant's further contentionthat the court erred in failing to reopen the competency hearing based upon the reportdefendant's psychologist issued following the hearing but based on the result of hisexaminations of defendant prior to the hearing. We recognize that the court has acontinuing duty to inquire into a defendant's competency where facts arise during trialthat indicate that the defendant cannot understand the proceedings or assist in his or herdefense (see People vTaylor, 13 AD3d 1168, 1169 [2004], lv denied 4 NY3d 836 [2005]).However, at the time defendant moved to reopen the hearing, defense counsel indicatedthat he had not observed any change in defendant during the course of his representation.Further, defense counsel made no allegations indicating that there was any change indefendant's conduct after the initial hearing, and the court had the opportunity duringtrial to observe defendant and his interaction with counsel. Under these circumstances,we conclude that the court did not abuse its discretion in refusing to reopen thecompetency hearing (see Peoplev Johnson, 52 AD3d 1040, 1042 [2008], lv denied 11 NY3d 833[2008]). We note in any event that, during the trial the court permitted defendant's expert,over the objection of the prosecutor, to testify that in his opinion defendant was notcompetent to stand trial.
Defendant failed to preserve for our review his contention that his waiver of the rightto be present at bench conferences during jury selection was not knowingly, voluntarilyand intelligently made (see People v King, 234 AD2d 391, 391 [1996], lvdenied 89 NY2d 986 [1997]). In any event, that contention has no merit. Defendantwas apprised by the court that it would not conduct bench conferences if he insisted onbeing present, whereupon defendant expressly waived his right to be present. Weconclude that the waiver was knowingly, intelligently and voluntarily made (see People v Cahill, 2 NY3d14, 55-56 [2003]; People v Vargas, 88 NY2d 363, 375-378 [1996]).
Also contrary to defendant's contention, the court properly allowed the People toamend the indictment. The amendments did not change the theory of the prosecution anddid not "otherwise tend to prejudice the defendant on the merits" (CPL 200.70 [1]; see People v Brink, 31 AD3d1139, 1140 [2006], lv denied 7 NY3d 865 [2006]). Defendant's contentionthat certain photographs of the victim were inflammatory and should not have beenadmitted in evidence lacks merit. The court had broad discretion in determining whetherthe probative value of the photographs outweighed any prejudice to defendant (seePeople v Law, 273 AD2d 897, 898 [2000], lv denied 95 NY2d 965 [2000]).Here, the photographs were relevant with respect to, inter alia, the nature and extent ofthe injuries (see id.).
Defendant failed to preserve for our review his further contentions that hisconstitutional rights were violated by the use of the recorded jailhouse telephoneconversations between defendant and others (see CPL 470.05 [2]), that hisconsent to provide a DNA sample to the police was not valid (see People v Adger, 83 AD3d1590, 1591 [2011], lv denied 17 NY3d 857 [2011]), and that he was denieda fair trial by prosecutorial misconduct (see People v Rumph, 93 AD3d 1346, 1347 [2012], lvdenied 19 NY3d 967 [2012]). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
By proceeding to trial and failing to raise an objection at trial concerning the court'salleged failure to rule on his request for suppression of his January 22, 2009 statement tothe police, defendant abandoned any procedural challenge to that alleged failure (see People v Nix, 78 AD3d1698, 1699 [2010], lv denied 16 NY3d 799 [2011], cert denied 565US —, 132 S Ct 157 [2011]; People v Anderson, 52 AD3d 1320, 1320-1321 [2008],lv denied 11 NY3d 733 [2008]). Even assuming, arguendo, that [*3]defendant was in custody when he made one or more of hisprearrest statements, we conclude that the statements were made pursuant to validwaivers of his Miranda rights (see People v Williams, 62 NY2d 285,287-290 [1984]; see also Peoplev Debo, 45 AD3d 1349, 1350 [2007], lv denied 10 NY3d 809 [2008]).
Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence because his motion for a trial order of dismissalwas not specifically directed at the grounds advanced on appeal and because he failed torenew his motion after presenting evidence (see People v Roman, 85 AD3d 1630, 1630 [2011], lvdenied 17 NY3d 821 [2011]). Nevertheless, we exercise our power to address thatcontention with respect to counts 3 and 10 of the indictment as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]), and we conclude that theevidence is legally insufficient to support the conviction on those counts (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
With respect to the third count of the indictment, charging defendant with assault inthe first degree (Penal Law § 120.10 [1]), we agree with defendant that theevidence is legally insufficient to support the serious physical injury element of the crime(see generally People vStewart, 18 NY3d 831, 832-833 [2011]). We therefore modify the judgment byreducing the conviction under count three to assault in the second degree (§ 120.05[2]; see People v Snyder, 294 AD2d 381, 382 [2002], lv denied 98 NY2d702 [2002]), and we remit the matter to County Court for sentencing on that conviction(see generally People vHuntsman, 96 AD3d 1387, 1390 [2012], lv denied 20 NY3d 1099[2013]).
With respect to count 10, charging defendant with unlawful imprisonment in the firstdegree as a hate crime (Penal Law §§ 135.10, 485.05 [1] [b]), we agree withdefendant that the evidence is legally insufficient to support the hate crime element of theconviction. While the victim's disability may have provided the opportunity for defendantto commit the crime of unlawful imprisonment, the People failed to establish thatdefendant committed the "specified offense" of unlawful imprisonment "in whole or insubstantial part because of a belief or perception regarding" such disability (§485.05 [1] [b]). We therefore further modify the judgment by reducing the convictionunder count 10 to unlawful imprisonment in the first degree (§ 135.10; cf. People v Ortiz, 48 AD3d1112, 1112 [2008]), and we remit the matter to County Court for sentencing on thatconviction as well (see generally Huntsman, 96 AD3d at 1390). Based on ourresolution of the legal sufficiency issue with respect to counts 3 and 10, we do notaddress defendant's alternate contentions with respect to those counts. Viewing theevidence in light of the elements of the remaining crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
As the People correctly concede, the indeterminate sentence imposed on theconviction of rape in the second degree under count seven is illegal (see PenalLaw § 70.80 [1], [3]). We therefore additionally modify the judgment by vacatingthe sentence imposed on count seven, and we remit the matter to County Court forresentencing on that count. We reject defendant's contention that the imposition of afive-year period of postrelease supervision on the conviction of criminal sexual act in thesecond degree is illegal (see § 70.45 [2-a] [d]). We reject the furthercontention of defendant that he was denied effective assistance of counsel (see generally People v Caban,5 NY3d 143, 152 [2005]; People v Baldi, 54 NY2d 137, 147 [1981]).Defendant's sentence is not unduly harsh or severe.
We have reviewed defendant's remaining contentions and conclude that they arewithout merit. Present—Scudder, P.J., Smith, Centra, Carni and Sconiers, JJ.