| People v Woolson |
| 2014 NY Slip Op 08144 [122 AD3d 1353] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSkippy B. Woolson, Appellant. |
Bruce R. Bryan, Syracuse, for defendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered February 7, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal sexual act in the second degree (four counts) and endangering the welfare of achild.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, four counts of criminal sexual act in the second degree (Penal Law§ 130.45 [1]). Shortly before the trial was scheduled to begin, defensecounsel requested an adjournment of the trial on the ground that he was too ill to try thecase. County Court initially denied the request and resolved certain pretrial matters, butthen adjourned the trial. On appeal, defendant contends that the court abused itsdiscretion in denying the initial request for an adjournment. It is well settled that the"granting of an adjournment for any purpose is a matter of discretion for the trial court"(People v Singleton, 41 NY2d 402, 405 [1977]; see People v Spears, 64NY2d 698, 699-700 [1984];People v Green, 74 AD3d 1899, 1900-1901 [2010], lv denied 15 NY3d852 [2010]), and a " 'court's exercise of discretion in denying a request for anadjournment will not be overturned absent a showing of prejudice' " (People v Aikey, 94 AD3d1485, 1486 [2012], lv denied 19 NY3d 956 [2012]; see People v Bones, 50 AD3d1527, 1528 [2008], lv denied 10 NY3d 956 [2008]; see generally People vDashnaw, 37 AD3d 860, 862-863 [2007], lv denied 8 NY3d 945[2007]). Here, we conclude that defendant failed to establish that he was prejudiced bythe initial denial of defense counsel's request for an adjournment. We reject defendant'scontention that the court was required to hold the matter in abeyance pursuant to CPLR321 (c). Even assuming, arguendo, that the statute applies to criminal proceedings (cf.CPL 1.10; People v Silva, 122 AD2d 750, 750 [1986]), there is no indicationin the record that defense counsel was "physically or mentally incapacitated" (CPLR 321[c]).
Defendant further contends that he was denied effective assistance of counsel basedupon several acts or omissions on the part of defense counsel. "To prevail on a claim ofineffective assistance of counsel, it is incumbent on defendant to demonstrate the absenceof strategic or other legitimate explanations" for defense counsel's allegedly deficientconduct (People v Rivera, 71 NY2d 705, 709 [1988]; see People vBenevento, 91 NY2d 708, 712-713 [1998]), and defendant failed to make such ademonstration here. With respect to defendant's claim that defense counsel wasineffective for failing to produce an expert witness to rebut the expert testimonyintroduced by the People, defendant has not established that such expert "testimony wasavailable, that it would have assisted the jury in its determination or that he wasprejudiced by its absence" (People v West, 118 AD3d 1450, 1451 [2014] [internalquotation marks omitted]; see Aikey, 94 AD3d at 1487). With respect todefendant's claim that defense counsel was ineffective for failing to make certainmotions, it is well settled that an attorney's "failure to 'make a motion or argument thathas little or no chance of success' " does not amount to ineffective assistance (People v Caban, 5 NY3d143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]), and weconclude that defendant's claims of ineffectiveness involve motions that had virtually nochance of success. Defendant's remaining claims concerning ineffective assistance ofcounsel "involve[ ] matters outside the record on [*2]appeal, and thus the proper procedural vehicle for raising[those] claim[s] is by way of a motion pursuant to CPL 440.10" (People v Wilson, 49 AD3d1224, 1225 [2008], lv denied 10 NY3d 966 [2008]; see People v Hall, 50 AD3d1467, 1469 [2008], lv denied 11 NY3d 789 [2008]). Viewing the evidence,the law and the circumstances of this case, in totality and as of the time of therepresentation, we conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant's motion for a trial order of dismissal was not specifically directed at thegrounds advanced on appeal, and thus he failed to preserve for our review his challengeto the legal sufficiency of the evidence (see People v Gray, 86 NY2d 10, 19[1995]). In any event, we conclude that the evidence is legally sufficient to support theconviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Inaddition, viewing the evidence in light of the elements of the crimes 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 Bleakley, 69 NY2d at 495). "Resolutionof issues of credibility, as well as the weight to be accorded to the evidence presented,are primarily questions to be determined by the jury" (People v Witherspoon, 66 AD3d 1456, 1457 [2009], lvdenied 13 NY3d 942 [2010] [internal quotation marks omitted]), and "those who seeand hear the witnesses can assess their credibility and reliability in a manner that is farsuperior to that of reviewing judges who must rely on the printed record" (People v Lane, 7 NY3d888, 890 [2006]). Contrary to the dissent's conclusion that a possible discrepancy inthe date of the offense requires a different verdict, "any inconsistencies in the testimonyof the victim with respect to the date[ ] of [the] crime[ ] merely presented a credibilityissue for the jury to resolve" (People v Furlong, 4 AD3d 839, 841 [2004], lvdenied 2 NY3d 739 [2004]). Furthermore, we respectfully disagree with the dissent'sreliance upon the circumstances under which the victim disclosed the abuse as a reasonto reject his testimony. The People produced expert testimony establishing that victims ofsexual abuse often, as part of the sexual abuse accommodation syndrome, exhibit a"delayed, conflicted and unconvincing disclosure" of the abuse, which would explain thecircumstances upon which the dissent relies. Thus, although a different verdict would nothave been unreasonable, it cannot be said that the jury failed to give the evidence theweight it should be accorded (see generally Bleakley, 69 NY2d at495).
Finally, the sentence is not unduly harsh or severe.
All concur except Fahey, J., who dissents and votes to reverse in accordance with thefollowing memorandum.
Fahey J. (dissenting). I respectfully dissent. Although I agree with the majority withrespect to the other issues raised on appeal, viewing the evidence in light of the elementsof the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), Iconclude that the verdict is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). I therefore would reverse the judgment,dismiss the indictment, and remit the matter to County Court for proceedings pursuant toCPL 470.45.
I agree with defendant that, given the combination of the victim's mental illness, hispast false accusation of similar sexual abuse, his motivation to lie, and the timing of hisaccusation against defendant, this is one of those rare cases in which we should concludethat the jury failed to give the evidence the weight it should be accorded (see People v Goff, 68 AD3d1796, 1796-1797 [2009]; People v Wallace, 306 AD2d 802, 802-803 [2003];see generally Bleakley, 69 NY2d at 495). Here, the record establishes that thevictim has a history of mental illness and an inability to control his behavior. The victim'shistory also includes one false accusation of sexual abuse, which is remarkably similar tothe accusation made in this case. Further, the victim's testimony that the abuse continuedto occur into April 2011 while the victim's mother was working for defendant's aunt is atodds with the testimony of defendant's aunt that the victim's mother stopped working forher on March 25, 2011. Moreover, the victim's stated desire to have defendant leave thehome in which the victim lived with the victim's mother, coupled with the suspicious andself-serving timing of the accusation, leads to the conclusion that the victim's testimonyis "impossible of belief" (Wallace, 306 AD2d at 802).
Indeed, the record establishes that the victim claimed to have been sexually abusedby defendant nearly every day between late December 2010 and approximately April 11,2011. On April 11, 2011, the victim held a knife to the throat of a developmentallychallenged youth during the theft of the youth's bicycle. After that incident, defendantpunched the victim and gave the victim a black eye. The victim, in turn, "flipped out" andpunched a wall after the victim's [*3]mother sided withdefendant in a dispute about the punch. Sometime between April 11, 2011 and April 13,2011 the victim left the home shared by defendant and the victim's mother and entered aplacement. On April 13, 2011, the victim refused to leave that placement to return to thehome shared by defendant and the victim's mother. The next day, the victim accuseddefendant of assaulting him, telling an Oswego County mental health worker that he was"sick of [defendant]," did not want to live with him, and "want[ed] him arrested." OnApril 15, 2011, the victim was sent to a different facility for a psychiatric evaluation and,while at that facility on April 16, 2011, he told staff that defendant had punched him, buthe did not disclose any sexual abuse. On April 18, 2011, defendant told staff that he didnot want to return home because defendant had punched him, and only later that day didthe victim disclose the alleged sexual abuse to his sister. Defendant's conviction hingedon the testimony of the victim and, given the foregoing flaws in that evidence, I cannotagree with the majority that the jury was "justified in finding . . . defendantguilty beyond a reasonable doubt" (Danielson, 9 NY3d at 348).Present—Smith, J.P., Fahey, Lindley, Valentino and DeJoseph, JJ.