| People v Alexander |
| 2013 NY Slip Op 06100 [109 AD3d 1083] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TyreeAlexander, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered December 16, 2005. The judgment convicted defendant, upon a jury verdict, ofsexual abuse in the first degree (two counts) and endangering the welfare of a child (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts each of sexual abuse in the first degree (Penal Law § 130.65[3]) and endangering the welfare of a child (§ 260.10 [1]). Contrary to defendant'scontention, he was not denied his constitutional right to proceed pro se. Defendantsought to proceed pro se because he believed that his assigned counsel did not spendenough time both with him and in researching the case. After County Court ordereddefense counsel to spend the afternoon with defendant preparing for trial, defendant didnot again seek to proceed pro se. We conclude that defendant's request to proceed pro sewas made in the context of a claim expressing his dissatisfaction with his attorney andwas not unequivocal (seePeople v Gillian, 8 NY3d 85, 88 [2006]; People v Caswell, 56 AD3d 1300, 1301-1302 [2008],lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781[2009]). "In any event, . . . defendant abandoned his request bysubsequently acting in a manner indicating his satisfaction with counsel" (People v Jackson, 97 AD3d693, 694 [2012], lv denied 20 NY3d 1100 [2013]; see Gillian, 8NY3d at 88).
Defendant's contention that the court erred in allowing the seven-year-old victim togive sworn testimony is not preserved for our review (see People v Dickens, 48AD3d 1034, 1034-1035 [2008], lv denied 10 NY3d 958 [2008]). In anyevent, the court did not abuse its discretion in admitting that testimony inasmuch as thewitness demonstrated sufficient intelligence and capacity, and further demonstrated thatshe understood the nature of an oath, i.e., she "appreciate[d] the difference between truthand falsehood, the necessity for telling the truth, and the fact that a witness who testifiesfalsely may be punished" (CPL 60.20 [2]; see People v Beckwith, 289 AD2d956, 958 [2001], amended on rearg 303 AD2d 1054 [2003]; see generallyPeople v Nisoff, 36 NY2d 560, 565-566 [1975]). The court properly determined thatthe presumption of incompetency was overcome (see People v Hetrick, 80 NY2d344, 349 [1992]; People v Morales, 80 NY2d 450, 452-453 [1992]; People v Schroo, 87 AD3d1287, 1289 [2011], lv denied 19 NY3d 977 [2012]).[*2]
Defendant next contends that the evidence islegally insufficient to establish that he had sexual contact with the victim. Defendantfailed to preserve that contention for our review inasmuch as he failed to renew hismotion for trial order of dismissal after presenting evidence (see People v Hines,97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, thatcontention lacks merit (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Further, viewing the evidence in light of the elements of the crimes as chargedto the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495).
We reject the contention of defendant that he received ineffective assistance ofcounsel. Defendant failed to establish the absence of a strategic reason for defensecounsel's failure to exercise any challenges during voir dire (see generally People vBenevento, 91 NY2d 708, 712 [1998]; People v Turck, 305 AD2d 1072,1073 [2003], lv denied 100 NY2d 566 [2003]). Defendant also failed to establishthe absence of a strategic reason for defense counsel's failure to call any witnesses at theHuntley hearing, or any witnesses other than defendant at trial (see generallyBenevento, 91 NY2d at 712). Inasmuch as the court did not abuse its discretion inpermitting the victim to testify, defense counsel's failure to object to the admission of thattestimony cannot be considered ineffective assistance of counsel (see People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]; People v Crump, 77 AD3d1335, 1336 [2010], lv denied 16 NY3d 857 [2011]). Contrary to defendant'scontention, the record establishes that defense counsel adequately cross-examined thewitnesses at trial and presented a cogent defense. In fact, we note that defense counsel'scross-examination of the witnesses raised some inconsistencies in their testimony, anddefendant relies on those inconsistencies in contending that the verdict is against theweight of the evidence. Defendant failed to establish the absence of a strategic reason forthe fact that defense counsel did not move for a mistrial or seek a curative instructionafter an outburst by the mother of the victim during the testimony of the victim's sister(see generally Benevento, 91 NY2d at 712). Inasmuch as a motion for a mistrialwould have had "little or no chance of success," defense counsel's failure to seek thatrelief cannot be considered ineffective assistance (Stultz, 2 NY3d at 287).
Finally, the sentence is not unduly harsh or severe, particularly in light of defendant'spast criminal conduct. Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto,JJ.