| People v Canfield |
| 2013 NY Slip Op 07606 [111 AD3d 1396] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Joseph Canfield, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered September 19, 2012. The judgment convicted defendant, upon a juryverdict, of rape in the first degree and sexual abuse in the first degree.
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 rape in the first degree (Penal Law § 130.35 [2]) and sexual abuse in thefirst degree (§ 130.65 [2]). We reject defendant's contention that Supreme Courterred in refusing to charge the jury with respect to the voluntariness of defendant'sstatements to the police. Such a charge is required only if defendant raises the issue ofvoluntariness at trial "by a proper objection, and evidence sufficient to raise a factualdispute [is] adduced either by direct [examination] or cross-examination" (People vCefaro, 23 NY2d 283, 288-289 [1968]; see People v Medina, 93 AD3d 459, 460 [2012], lvdenied 19 NY3d 999 [2012]). Inasmuch as defendant did not submit any evidencepresenting a genuine issue of fact concerning the voluntariness of his statements, thecourt was not required to instruct the jury on that issue (see People v Nathan, 108AD3d 1077, 1078 [2013]; People v White, 27 AD3d 884, 886 [2006], lv denied7 NY3d 764 [2006]).
We reject defendant's further contention that, in response to a jury question, the courterred in providing an expanded definition of the term "unconscious" as used in PenalLaw § 130.00 (7). When presented with a jury question, the court is obligated toprovide a meaningful response pursuant to CPL 310.30 (see People v Kadarko, 14NY3d 426, 429 [2010]). The term "unconscious" is not defined in the statute, andwe perceive no error in the court's use of a dictionary definition in responding to thejury's question (see McKinney's Cons Laws of NY, Book 1, Statutes §234). Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19[1995]). Furthermore, "[s]itting as the thirteenth juror . . . [and] weigh[ing]the evidence in light of the elements of the crime[s] as charged to the other jurors" (People v Danielson, 9 NY3d342, 349 [2007]), we conclude that, although a different verdict would not havebeen unreasonable, it cannot be said that the jury failed to give the evidence the weight itshould be accorded (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Also contrary to defendant's contention, he was not denied effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]). In [*2]particular, with respect to defendant's allegation thatdefense counsel was ineffective based on his failure to move to suppress his statementsto the police, we conclude that defendant failed to establish that such a motion, if made,would have been successful (seePeople v Peterson, 19 AD3d 1015, 1015 [2005], lv denied 6 NY3d 851[2006]). Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P.,Fahey, Carni, Sconiers and Valentino, JJ.