| People v Williams |
| 2013 NY Slip Op 06463 [110 AD3d 1458] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RalphN. Williams, Appellant. (Appeal No. 1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Richard C. Kloch, Sr.,A.J.), rendered May 20, 2011. The judgment convicted defendant, upon a nonjuryverdict, of rape in the first degree, rape in the second degree and endangering the welfareof a child.
It is hereby ordered that the appeal from the judgment insofar as it imposed sentenceis unanimously dismissed and the judgment is otherwise affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a nonjury trial of rape in the first degree (Penal Law § 130.35 [1]), rapein the second degree (§ 130.30 [1]), and endangering the welfare of a child(§ 260.10 [1]). In appeal No. 2, defendant appeals from the resentence imposed forthat conviction.
In appeal No. 1, we conclude that defendant failed to preserve for our review hiscontention that the evidence is legally insufficient to support the convictions of rape inthe first degree and rape in the second degree inasmuch as his motion for a trial order ofdismissal was not " 'specifically directed' at the alleged error" asserted on appeal(People v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence in light of theelements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). "Great deference is to be accorded tothe fact[ ]finder's resolution of credibility issues based upon its superior vantage pointand its opportunity to view witnesses, observe demeanor and hear the testimony" (People v Aikey, 94 AD3d1485, 1486 [2012], lv denied 19 NY3d 956 [2012] [internal quotation marksomitted]; see People vMosley, 59 AD3d 961, 962 [2009], lv denied 12 NY3d 918 [2009],reconsideration denied 13 NY3d 861 [2009]). Here, Supreme Court credited thevictim's testimony, and we see no basis for disturbing that determination (see People v Maxwell, 103AD3d 1239, 1240 [2013], lv denied 21 NY3d 945 [2013]).
We reject defendant's contention that he was denied the right to effective assistanceof counsel based on defense counsel's performance during the cross-examination ofprosecution witnesses. That contention involves "a simple disagreement with strategies,tactics or the scope of possible cross-examination, weighed long after the trial"(People v Flores, 84 NY2d 184, [*2]187 [1994]),and "[s]peculation that a more vigorous cross-examination might have [undermined thecredibility of a witness] does not establish ineffectiveness of counsel" (People v Bassett, 55 AD3d1434, 1438 [2008], lv denied 11 NY3d 922 [2009] [internal quotation marksomitted]; see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to defendant's further contention, the court properly denied his request forthe victim's counseling records and the records from other criminal proceedingsconcerning unrelated crimes committed against the victim. "The court determinedfollowing an in camera inspection of the victim's counseling records that they did notrelate to the crimes committed by defendant" (Bassett, 55 AD3d at 1437).Additionally, the contentions raised by defendant with respect to his request for records"concerned information that would be used to impeach the victim's general credibility[,]"and thus the request was properly denied (People v Reddick, 43 AD3d 1334, 1335 [2007], lvdenied 10 NY3d 815 [2008]; see generally People v Gissendanner, 48 NY2d543, 548 [1979]). Defendant failed to preserve for our review his contention that theorder of protection issued by the court does not comport with CPL 530.13 (see People v Nieves, 2 NY3d310, 315-317 [2004]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
With respect to appeal No. 2, we conclude that the sentence imposed at resentencingis not unduly harsh or severe. We note, however, that the certificate of convictionincorrectly reflects that defendant's resentence on the count of rape in the second degreeincluded a seven-year period of postrelease supervision. The certificate of convictionmust therefore be amended to reflect that the resentence did not include any postreleasesupervision for that count inasmuch as the sentence imposed with respect to that countwas for an indeterminate term of incarceration of 3½ to 7 years (see PenalLaw § 70.45 [1]; seegenerally People v Anderson, 79 AD3d 1738, 1739 [2010], lv denied 16NY3d 856 [2011]). Present—Scudder, P.J., Centra, Lindley and Whalen, JJ.