| People v VanDeusen |
| 2015 NY Slip Op 05226 [129 AD3d 1325] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Darren T. VanDeusen, Appellant. |
Mark A. Myers, Albany, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Devine, J. Appeals (1) from a judgment of the County Court of Otsego County(Lambert, J.), rendered January 7, 2013, upon a verdict convicting defendant of the crimeof criminal sexual act in the first degree, and (2) by permission, from an order of saidcourt, entered January 21, 2014, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, after a hearing.
Defendant was charged in an indictment with criminal sexual act in the first degreeas the result of allegations that he anally violated a 10-year-old child. He was foundguilty as charged after a jury trial, and was sentenced by County Court to a prison term of20 years to be followed by postrelease supervision of 15 years. Defendant then sought tovacate the judgment of conviction pursuant to CPL article 440 and, following a hearing,that motion was denied. Defendant now appeals from the judgment of conviction and, bypermission, from the order denying his motion to vacate.
We affirm. Defendant first contends that the verdict was against the weight of theevidence. The record reveals that defendant dated the victim's sister, and the victim andher mother testified that the incident occurred when defendant was staying overnight attheir residence in December 2011. Defendant had established a friendly relationship withthe victim and, at 1:00 a.m. that morning, he woke her and told her to go to the bathroom.The two walked together and, upon entering the bathroom, defendant locked the doorbehind them. He then ordered the victim to pull down her pants, told her what heintended to do and warned her that "if [*2]you tell, I'll goto jail and you'll go to" a group home. According to the victim, defendant then engagedin anal sex with her.
The victim did not immediately report the incident out of fear, but told her motherabout it the next afternoon. She was immediately taken to the hospital, where medicalprofessionals examined her and collected a rape kit. The pediatrician who conducted theexamination testified that he observed injuries in and around the victim's anus that wereconsistent with an assault. The rape kit was also submitted for DNA analysis, and theforensic scientist who conducted that analysis detected male DNA on the anal swabs inthe kit. She was unable to make a specific match to any individual because of the paucityof genetic material. She accordingly conducted Y-STR DNA testing, which isolates theexclusively male Y chromosome and identifies the paternal line from which thatchromosome originated. The test results indicated that defendant could not be excludedas the source of the DNA, and the forensic scientist testified that the same could only besaid for 1 out of every 2,857 males. In our view, an acquittal would not have beenunreasonable because of serious questions regarding the credibility of the victim and theabsence of more conclusive physical evidence tying defendant to the crime. Defendantfully explored those issues at trial, however, and the jury credited the proof that he hadsexually assaulted the victim. Thus, according deference to the jury's credibilitydeterminations, we cannot say that the jury's verdict was against the weight of theevidence (see People vKancharla, 23 NY3d 294, 302-303 [2014]; People v Shofkom, 63 AD3d 1286, 1287 [2009], lvdenied 13 NY3d 799 [2009], appeal dismissed 13 NY3d 933 [2010]; People v Boyce, 2 AD3d984, 985-986 [2003], lv denied 2 NY3d 796 [2004]).
With regard to both his direct appeal and appeal from his CPL article 440 motion,defendant argues that he received the ineffective assistance of counsel due to the failureof defense counsel to investigate an alibi defense and adequately combat the DNAevidence submitted at trial. Defense counsel testified at the hearing on defendant'spostconviction motion, stating that defendant never definitively claimed to be elsewhereat the time of the incident and did not provide any information to demonstrate that suchwas the case. Defense counsel further denied having been contacted by a friend ofdefendant who claimed to have been with him on the night of the incident and, in anyevent, questioned the strategic value of an alibi defense given that defendant toldinvestigators that he had been on the scene.[FN*] Defense counsel also retained an expertto review the Y-STR DNA test results—which were reached through what the trialtestimony indicated was a scientifically accepted and reliable method—andvigorously cross-examined the forensic scientist who conducted the test. County Courtcredited the testimony of defense counsel over conflicting proof, an assessment that is"entitled to great deference on appeal," and we find that its decision to do so is supportedby the record (People vBritton, 49 AD3d 893, 894 [2008], lv denied 10 NY3d 956 [2008]; accord People v Bodah, 67AD3d 1195, 1196 [2009], lv denied 14 NY3d 838 [2010]). We haveexamined defendant's remaining arguments regarding ineffective assistance and, sufficeit to say, find that the record as a whole establishes that he received meaningfulrepresentation (see People vAvery, 80 AD3d 982, 987 [2011], lv denied 17 NY3d 791 [2011]).
Defendant lastly contends that the sentence was harsh and excessive but, given thenature of the crime for which he was convicted, his lack of remorse and the opinion ofthe author [*3]of the presentencing report that a lengthysentence was in order, we are unpersuaded (see People v Smith, 272 AD2d 713,716 [2000], lv denied 95 NY2d 871 [2000]).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *:Defendant now suggeststhat he did not make such an admission to investigators, but notably failed to submit hisrecorded statement into evidence or otherwise address the issue at the hearing on theCPL article 440 motion.