| People v Angona |
| 2014 NY Slip Op 05257 [119 AD3d 1406] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vMathew J. Angona, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Courtney E. Pettit of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (William D. Walsh, A.J.),rendered March 8, 2010. The judgment convicted defendant, upon a jury verdict, ofsodomy in the first degree (four counts).
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of four counts of sodomy in the first degree (Penal Law former§ 130.50 [3]). Contrary to defendant's contention, the People were notrequired to charge the defense of infancy to the grand jury, and the grand juryproceedings therefore were not rendered defective by the failure to charge that defense(see generally CPL 210.20 [1] [c]; 210.35 [5]; People v Huston, 88 NY2d400, 411 [1996]). There is no requirement "that the [g]rand [j]ury must be charged withevery potential defense suggested by the evidence" (People v Valles, 62 NY2d36, 38 [1984]). Rather, the People must charge "only those defenses that the evidencewill reasonably support," and here the evidence did not reasonably support such adefense (People v Coleman,4 AD3d 677, 678 [2004]; cf. People v Calkins, 85 AD3d 1676, 1677 [2011]).Contrary to defendant's further contention, we conclude that County Court did not abuseits discretion in denying defendant's request to file a late notice of alibi (see generallyPeople v Brock, 277 AD2d 1008, 1008 [2000]). Defendant's request wassubstantively inadequate because it failed to identify the place or places where defendantclaims to have been at the time in question, and the names, the residential addresses, theplaces of employment and the addresses thereof of every alibi witness upon whom heintended to rely (see CPL 250.20 [1]). Defendant failed to preserve for ourreview his contention that the indictment was fatally defective because it lackedsufficient specificity to enable him to prepare a defense (see People v Erle, 83 AD3d1442, 1443 [2011], lv denied 17 NY3d 794 [2011]). In any event,defendant's contention lacks merit. The time frame set forth in the indictment, i.e.,"during the months of September or October 2001," was sufficiently specific in view ofthe nature of the offenses and the age of the victim at the time of the indicted acts (see People v Roman, 43 AD3d1282, 1283 [2007], lv denied 9 NY3d 1009 [2007]; cf. People v Sedlock, 8 NY3d535, 540 [2007]).
Defendant failed to preserve for our review his further contentions that the courtviolated CPL 270.15 (2) in conducting the jury selection (see People v Davis, 106 AD3d1510, 1511 [2013], lv [*2]denied 21 NY3d1073 [2013]), and that the court erred in failing sua sponte to reopen the suppressionhearing (see People v Clark,28 AD3d 1231, 1232 [2006]; People v Freeman, 253 AD2d 692, 692 [1998],lv denied 92 NY2d 982 [1998]). We decline to exercise our power to reviewthose contentions as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Defendant's contention that the evidence is legally insufficient to supportthe conviction is also not preserved for our review because defendant failed to renew hismotion for a trial order of dismissal after presenting proof (see People v Hines,97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event,defendant's contention, based upon the victim's alleged lack of credibility, is withoutmerit (see generally People vBlack, 38 AD3d 1283, 1285 [2007], lv denied 8 NY3d 982 [2007]).Furthermore, viewing the evidence in light of the elements of the crime as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
We reject defendant's further contention that he was deprived of effective assistanceof counsel based on, inter alia, defense counsel's failure to challenge a prospective jurorwho expressed a concern that, because she had grandchildren, she might sympathize withthe victim. The prospective juror further stated without equivocation that she couldfollow the court's instructions to render a verdict free from sympathy to anyone (see generally People v Noguel,93 AD3d 1319, 1320 [2012], lv denied 19 NY3d 965 [2012]). We also rejectdefendant's contention that he was denied effective assistance of counsel based ondefense counsel's failure to renew the motion for a trial order of dismissal (see People v Pytlak, 99 AD3d1242, 1243 [2012], lv denied 20 NY3d 988 [2012]). It is well settled thatdefense counsel cannot be deemed ineffective for failing to "make a motion or argumentthat has little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004], rearg denied3 NY3d 702 [2004]; seePeople v Caban, 5 NY3d 143, 152 [2005]). Contrary to defendant's furthercontention, defense counsel's failure to object to the brief reference to defendant's priorincarceration did not deprive him of effective assistance of counsel (see People v Joseph, 68 AD3d1534, 1537 [2009], lv denied 14 NY3d 889 [2010], cert denied 562US &mdash, 131 S Ct 797 [2010]).
We reject the further contention of defendant that he was deprived of his right to afair trial by prosecutorial misconduct. The prosecutor's description of the defense theoryas a "ruse" was within the wide rhetorical bounds afforded the prosecutor (cf. Peoplev Walker, 119 AD3d 1402, 1404 [July 11, 2014]; see generally People v Ashwal, 39 NY2d 105,109-110 [1976]). Even assuming, arguendo, that during opening or closing statementsthe prosecutor's use of the phrase "little boy" or "young boy" to describe the victim wasimproper, we conclude that such conduct was not so egregious as to deprive defendant ofa fair trial (see People vCordero, 110 AD3d 1468, 1470 [2013], lv denied 22 NY3d 1137[2014]). Defendant contends that the prosecutor improperly suggested to the jury duringsummation that it was "plausible" that the victim became a sex offender later in life basedon defendant's perpetration of the indicted acts. The court sustained defense counsel'sobjections to the prosecutor's remarks and instructed the jury to disregard them.Defendant did not thereafter request further curative instructions or move for a mistrial,and thus failed to preserve for our review his present contention that the prosecutor'sconduct deprived him of a fair trial (see CPL 470.05 [2]; People v Norman, 1 AD3d884, 884 [2003], lv denied 1 NY3d 599 [2004]). We decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We likewise reject defendant's contention that he was penalized for exercising hisright to a jury trial. There is no indication that the sentence imposed was the product ofvindictiveness or that the court placed undue weight upon defendant's decision to reject afavorable plea bargain and proceed to trial (see People v Smith, 21 AD3d 1277, 1278 [2005], lvdenied 7 NY3d 763 [2006]).
Finally, defendant's sentence is not unduly harsh or severe. In reaching thatconclusion, we note that, inasmuch as each of defendant's four crimes was a separate anddistinct act, [*3]defendant faced the possibility ofconsecutive sentences aggregating 100 years, albeit reduced pursuant to Penal Law§ 70.30 (see People v Arroyo, 93 NY2d 990, 992 [1999]; People v Cruz, 41 AD3d893, 897 [2007], lv denied 10 NY3d 933 [2008]). The court properlyexercised its discretion in sentencing defendant to concurrent sentences aggregating 25years. That sentence appropriately takes into account the heinous nature of defendant'sconduct (see Cruz, 41 AD3d at 897). As the dissent correctly notes, defendant"self-reported" the crimes. However, when he testified at trial, defendant recanted,denying that the crimes ever occurred and asserting that his inculpatory statements werefabricated by the police and that he was subjected to beatings at the police station. Theseclaims were rejected by the jury. It is well settled that a sentencing court may consider adefendant's prior offenses—including those resulting in a youthful offenderadjudication (see People v Brunner, 182 AD2d 1123, 1123 [1992], lv denied80 NY2d 828 [1992]; People v Sapp, 169 AD2d 659, 660 [1991], lvdenied 77 NY2d 966 [1991]). In this case, defendant had a prior youthful offenderadjudication for the sexual abuse of an eight-year-old male. Although the dissentcorrectly observes the disparity between the plea offer and the sentence, it is wellestablished that "[t]he mere fact that a sentence imposed after trial is greater than thatoffered in connection with plea negotiations is not proof that defendant was punished forasserting his right to trial" (People v Simon, 180 AD2d 866, 867 [1992], lvdenied 80 NY2d 838 [1992]). We also note that new facts and circumstancesdefendant presented to the court through his trial testimony, after the original plea offer,such as his perjurious testimony and lack of genuine remorse, rebutted any presumptionof vindictiveness arising from the imposition of the increased sentence after trial (see People v Ocampo, 52AD3d 741, 742 [2008], lv denied 11 NY3d 792 [2008]).
All concur except Centra and Lindley, JJ., who dissent in part and vote to modify inaccordance with the following memorandum.
Centra and Lindley, JJ. (dissenting). We respectfully dissent in part. Although weagree with the majority that defendant's conviction of four counts of sodomy in the firstdegree should stand, we conclude that the sentence imposed by County Court is undulyharsh and severe. We would therefore exercise our power to modify the sentence as amatter of discretion in the interest of justice (see CPL 470.15 [6] [b]), and wewould modify the judgment by reducing the four concurrent terms of incarcerationimposed from 25 years to 15 years, to be followed by the five-year period of postreleasesupervision (PRS) imposed by the court.
Defendant committed the crimes when he was 16 years old. If the crimes had beencommitted six months earlier, defendant, due to his infancy, could not have been chargedcriminally and would thus have faced no prison time. Defendant self-reported his crimesto the police approximately eight years after they were committed, stating that he wantedto get something off his chest and clear his conscience. If defendant had not gone to thepolice himself, he likely would never have been charged, inasmuch as the victim had notdisclosed the abuse to anyone. This may explain why, prior to indictment, the Peopleoffered defendant the opportunity to plead guilty to a reduced sex offense with a sentencepromise of four months in jail and 10 years of probation. On the eve of trial, the Peopleoffered a plea deal involving a two-year sentence. After trial, he was sentenced to anaggregate term of imprisonment of 25 years plus five years of PRS.
We understand that a defendant who rejects a plea offer with a specific sentencepromise cannot expect to receive that same sentence after trial. We also recognize thatdefendant's conduct in this case was reprehensible and that he is a danger to thecommunity if he is at large. Nevertheless, "the considerable disparity between thesentence offered prior to trial and that ultimately imposed after trial strikes us as tooextreme a penalty for defendant's exercise of his constitutional right to a jury trial"(People v Morton, 288 AD2d 557, 559 [2001], lv denied 97 NY2d 758[2002], cert denied 537 US 860 [2002]; see People v Riback, 57 AD3d 1209, 1218 [2008], revdon other grounds 13 NY3d 416 [2009]; see also People v Cruz, 41 AD3d 893, 896-897 [2007],lv denied 10 NY3d 933 [2008]).
[*4] We note that the People do not assert that the trial revealed any facts that wereunknown to them when the plea offers were extended to defendant. We also note that,although defendant's rejection of the plea offers resulted in the victim having to testify attrial, the victim was 18 years old when the last offer was extended and was himself aconvicted felon serving time in state prison. Thus, unlike in many sexual assault casesinvolving child victims, there was not a compelling need to shield the victim fromtestifying at trial. While we are mindful that defendant deserves a lengthy sentence due tothe heinous nature of his conduct and his refusal to accept responsibility, we neverthelessconclude that concurrent determinate terms of imprisonment of 15 years plus five yearsof PRS is more appropriate than the 25-year concurrent sentences imposed by the court.Present—Scudder, P.J., Centra, Carni, Lindley and DeJoseph, JJ.