| People v West |
| 2014 NY Slip Op 04629 [118 AD3d 1450] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLucas West, Appellant. |
Lucille M. Rignanese, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered May 13, 2011. The judgment convicted defendant, upon a jury verdict, ofcourse of sexual conduct against a child in the first degree, rape in the third degree andcourse of sexual conduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of course of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [b]), rape in the third degree (§ 130.25 [2]), andcourse of sexual conduct against a child in the second degree (§ 130.80 [1][b]). Contrary to defendant's contention, Supreme Court did not err in denying his motionpursuant to CPL 330.30 to set aside the verdict. " 'Pursuant to CPL 330.30 (1),following the issuance of a verdict and before sentencing a court may set aside a verdicton "[a]ny ground appearing in the record which, if raised upon an appeal from aprospective judgment of conviction, would require a reversal or modification ofthe judgment as a matter of law by an appellate court" ' (People v Benton, 78 AD3d1545, 1546 [2010], lv denied 16 NY3d 828 [2011]). 'The power granted aTrial Judge is, thus, far more limited than that of an intermediate appellate court, which isauthorized to determine not only questions of law but issues of fact . . . , toreverse or modify a judgment when the verdict is against the weight of the evidence. . . , and to reverse "[a]s a matter of discretion in the interest ofjustice" ' (People v Carter, 63 NY2d 530, 536 [1984])" (People v Rohadfox, 114 AD3d1217, 1218 [2014]).
Defendant contends that the court erred in denying his CPL 330.30 motion becausedefense counsel's failure to investigate and pursue an alibi defense constituted ineffectiveassistance of counsel (seePeople v Taylor, 97 AD3d 1139, 1141 [2012], lv denied 19 NY3d 1029[2012]; see generally People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004];People v Henry, 95 NY2d 563, 565-566 [2000]). An alibi defense is "based onthe physical impossibility of a defendant's guilt by placing the defendant in a locationother than the scene of the crime at the relevant time" (Black's Law Dictionary 84 [9th ed2009]) and, here, even if the evidence in question had been admitted at trial, it would nothave established an alibi for defendant. "A defendant is not denied effective assistance oftrial counsel merely because counsel does not make a motion or argument that has littleor no chance of success" (Stultz, 2 NY3d at 287), and thus the court properlydenied [*2]defendant's motion insofar as it allegedineffective assistance of counsel based on the failure to pursue an alibi defense (seegenerally Carter, 63 NY2d at 536).
Defendant also contends that he was denied effective assistance of counsel for alitany of reasons not addressed by the CPL 330.30 motion. To the extent that thoseinstances of alleged ineffective assistance of counsel specified by defendant are based onmatters outside the record on appeal, they must be raised by way of a motion pursuant toCPL article 440 (see generallyPeople v Russell, 83 AD3d 1463, 1465 [2011], lv denied 17 NY3d 800[2011]). To the extent that those instances of alleged ineffective assistance are based ondefense counsel's failure to make a particular motion or argument, we again note that anattorney's failure to "make a motion or argument that has little or no chance of success"does not amount to ineffective assistance (Stultz, 2 NY3d at 287). To the extentthat defendant contends that defense counsel was ineffective in failing to retain an expertwitness, we reject that contention. " 'Defendant has not demonstrated that suchtestimony was available, that it would have assisted the jury in its determination or thathe was prejudiced by its absence' " (People v Jurgensen, 288 AD2d 937,938 [2001], lv denied 97 NY2d 684 [2001]; see People v Aikey, 94 AD3d 1485, 1487 [2012], lvdenied 19 NY3d 956 [2012]). Moreover, viewing the evidence, the law and thecircumstances of this case, in totality and as of the time of the representation, weconclude that defendant received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Viewing the evidence in light of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987])."[R]esolution of issues of credibility, as well as the weight to be accorded to the evidencepresented, are primarily questions to be determined by the jury" (People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]). Defendant failed to preserve for our review his contention that theindictment was facially deficient (see CPL 470.05 [2]; see also People vSoto, 44 NY2d 683, 684 [1978]), and we decline to exercise our power to address itas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant's further contention, the court did not err in admitting inevidence testimony of defendant's abuse of the victims that occurred after each victimturned 13 years old (cf. Penal Law §§ 130.75 [1] [b]; 130.80[1] [b]), inasmuch as such evidence " 'complete[d] the narrative of the eventscharged in the indictment . . . , and it also provided necessary backgroundinformation' " (People vWorkman, 56 AD3d 1155, 1156 [2008], lv denied 12 NY3d 789 [2009];see generally People vLeeson, 12 NY3d 823, 826-827 [2009]). Defendant's additional contention thatPenal Law §§ 130.75 and 130.80 are unconstitutionally vague is notproperly before us. Defendant failed to give the requisite notice to the Attorney General(see Executive Law § 71 [3]; People v Woodard, 83 AD3d 1440, 1442 [2011], lvdenied 17 NY3d 803 [2011]), and he failed to preserve that contention for ourreview (see Woodard, 83 AD3d at 1442).
Finally, we reject the contention of defendant that cumulative errors deprived him ofa fair trial. Present—Scudder, P.J., Fahey, Carni, Valentino and Whalen,JJ.