| People v Pulvino |
| 2014 NY Slip Op 01889 [115 AD3d 1220] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vBrandon M. Pulvino, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered November 30, 2011. The judgment convicted defendant, upon a nonjuryverdict, of criminal sexual act in the first degree and attempted aggravated sexual abusein the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjurytrial, of criminal sexual act in the first degree (Penal Law § 130.50 [3]) and twocounts of attempted aggravated sexual abuse in the third degree (§§ 110.00,130.66 [1] [c]). Defendant contends that the prosecutor engaged in misconduct duringthe grand jury proceedings by permitting the three victims to testify before the grand jurynotwithstanding their lack of testimonial capacity (see generally CPL 60.20).Defendant failed to preserve that contention for our review (see People v Walker, 50 AD3d1452, 1453 [2008], lv denied 11 NY3d 795 [2008], reconsiderationdenied 11 NY3d 931 [2009]), and we decline to exercise our power to review it as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Insofar asdefendant contends that County Court erred in denying, or in declining to rule on, hismotion to dismiss the indictment on the ground that the victims lacked the capacity totestify under oath at the grand jury, we note that "[d]efendant was convicted 'upon legallysufficient trial evidence,' and thus his contention with respect to the competency of theevidence before the grand jury 'is not reviewable upon an appeal from the ensuingjudgment of conviction' " (People v Haberer, 24 AD3d 1283, 1284 [2005], lvdenied 7 NY3d 756 [2006], lv denied upon reconsideration 7 NY3d 848[2006], quoting CPL 210.30 [6]; see People v Paul, 48 AD3d 833, 834 [2008], lvdenied 10 NY3d 868 [2008]; People v Carpenter, 35 AD3d 1092, 1093 [2006]).
Contrary to defendant's contention, the court did not abuse its discretion inpermitting the two younger victims to provide sworn testimony at trial. Those victims,who were seven and eight years old, demonstrated that they understood the nature of anoath, i.e., that they "appreciate[d] the difference between truth and falsehood, thenecessity for telling the truth, and the fact that a witness who testifies falsely may bepunished" (CPL 60.20 [2]; seePeople v Alexander, 109 AD3d 1083, 1084 [2013]; People v Feldt, 198AD2d 788, 789 [1993]; see generally People v Hetrick, 80 NY2d 344, 349[1992]; People v Nisoff, 36 NY2d 560, 565-566 [1975]). We reject defendant's[*2]contention that the court failed to rule on his requestto preclude the two younger victims from testifying. To the contrary, the recordestablishes that the court individually questioned both of those victims and expresslyruled that they would be permitted to testify under oath.
Defendant further contends that the court erred in denying his request to preclude allthree victims from giving sworn testimony because they lacked a basic religiouseducation and because they were improperly coached by the prosecution. We reject thatcontention. Contrary to defendant's contention, the witnesses' lack of religious educationis not a proper basis upon which to refuse to permit them to testify under oath (seePeople v Cordero, 257 AD2d 372, 375 [1999], lv denied 93 NY2d 968[1999]). We reject defendant's further contention that the prosecutor committedmisconduct in the form of witness coaching (see generally Perry v Leeke, 488 US272, 282 [1989]). "There was no nonspeculative evidence of any improper influenceexerted on th[ose] witness[es]" (People v Thompson, 59 AD3d 1115, 1116 [2009], lvdenied 12 NY3d 860 [2009] [internal quotation marks omitted]; see People vKemp, 251 AD2d 1072, 1072 [1998], lv denied 92 NY2d 900 [1998]; see also People v Montalvo, 34AD3d 600, 601 [2006], lv denied 8 NY3d 883 [2007]; People v Nickel, 14 AD3d869, 870-871 [2005], lv denied 4 NY3d 834 [2005]).
Defendant further contends that he was denied effective assistance of counselbecause of a litany of alleged errors, including defense counsel's failure to move todismiss the indictment on constitutional speedy trial grounds. It is well settled that"[t]here can be no denial of effective assistance of trial counsel arising from counsel'sfailure to 'make a motion or argument that has little or no chance of success' " (People v Caban, 5 NY3d143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]). It is also wellsettled that, in determining whether there has been an unconstitutional delay incommencing a prosecution, the factors to be considered are "(1) the extent of the delay;(2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or notthere has been an extended period of pretrial incarceration; and (5) whether or not thereis any indication that the defense has been impaired by reason of the delay" (People vTaranovich, 37 NY2d 442, 445 [1975]; see People v Decker, 13 NY3d 12, 14-15 [2009]).Although no one factor is determinative, "the extent of the delay . . . is ofcritical importance because 'all other factors being equal, the greater the delay the moreprobable it is that the accused will be harmed thereby' " (People v Romeo, 12 NY3d51, 56 [2009], quoting Taranovich, 37 NY2d at 445). Here, the 21-monthdelay in presenting the matter to a grand jury was not unconstitutionally excessive(see generally Decker, 13 NY3d at 15-16; People v Gaston, 104 AD3d 1206, 1206-1207 [2013]; People v Rogers, 103 AD3d1150, 1151 [2013], lv denied 21 NY3d 946 [2013]; People v Green, 52 AD3d1263, 1264 [2008], lv denied 11 NY3d 788 [2008]), and defendant failed toidentify any prejudice arising from that delay. Thus, a motion to dismiss the indictmenton such grounds had little or no chance of success. We also reject defendant's remainingallegations of ineffective assistance of counsel and conclude that "the evidence, the law,and the circumstances of [this] particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation" (People vBaldi, 54 NY2d 137, 147 [1981]).
We reject defendant's contention that the court abused its discretion in denying hismotion in which he sought to be adjudicated a youthful offender. Pursuant to CPL720.10 (3) (i), a youth who is convicted of, inter alia, aggravated sexual abuse orfirst-degree criminal sexual act is ineligible for a youthful offender adjudication unlessthe court concludes, insofar as relevant here, that there are "mitigating circumstances thatbear directly upon the manner in which the crime was committed" (see CPL720.10 [2] [a] [iii]; People v Fields, 287 AD2d 577, 578 [2001], lvdenied 97 NY2d 681 [2001]; People v Victor J., 283 AD2d 205, 206-208[2001], lv denied 96 NY2d 942 [2001]). Here, defendant failed to introduce anyevidence that such mitigating circumstances exist (see People v Parker, 67 AD3d 1405 [2009], lv denied15 NY3d 755 [2010]; People v Terry, 19 AD3d 1039, 1040 [2005], lvdenied 5 NY3d 833 [2005]), and "[t]hus, defendant was not eligible to beadjudicated a youthful offender" (People v Lugo, 87 AD3d 1403, 1405 [2011], lv denied18 NY3d 860 [2011]).[*3]
Defendant failed to preserve for our review hisfurther contention that the duration of the orders of protection issued in connection withthe judgment exceed the statutory maximum (see People v Nieves, 2 NY3d 310, 315-317 [2004]), andwe decline to exercise our power to review it as a matter of discretion in the interest ofjustice (see People vChildres, 60 AD3d 1278, 1279 [2009], lv denied 12 NY3d 913 [2009]).The sentence is not unduly harsh or severe. Present—Smith, J.P., Fahey, Carni,Sconiers and Valentino, JJ.