| People v Simmons |
| 2016 NY Slip Op 00405 [135 AD3d 1193] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEric J. Simmons, Appellant. |
Robert Gregor, Lake George, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Kristin T. Foust of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered August 26, 2014, convicting defendant following a nonjury trialof the crimes of criminal sexual act in the first degree, sexual abuse in the first degree,assault in the second degree, assault in the third degree and criminal obstruction ofbreathing or blood circulation.
Following an incident wherein he physically and sexually assaulted the victim,defendant was charged in a September 2011 felony complaint with attempted criminalsexual act in the first degree. He fled the state shortly after the incident and, in October2013, was charged in an indictment with criminal sexual act in the first degree, sexualabuse in the first degree, assault in the second degree, assault in the third degree andcriminal obstruction of breathing or blood circulation. Defendant was apprehended inNovember 2013 and returned to New York to face the pending charges against him.County Court denied that part of defendant's omnibus motion seeking dismissal of theindictment on statutory speedy trial grounds. Defendant then waived his right to a jurytrial and, after a bench trial, was found guilty as charged. County Court imposed anaggregate prison sentence of 12 years, to be followed by postrelease supervision of 20years, and defendant now appeals.
We affirm. Defendant first asserts that County Court erred in denying his applicationto dismiss the indictment on speedy trial grounds without a hearing (see CPL30.30, 210.45). Defendant supported that motion with the affidavit of his attorney, whocorrectly pointed out that over six months had elapsed between the filing of the felonycomplaint in September 2011 and the declaration by the People that they were ready fortrial (see CPL 1.20 [1], [17]; 30.30 [1] [a]). [*2]Adefendant seeking a speedy trial dismissal meets his or her initial burden on the motionby making "sworn allegations that there has been unexcused delay in excess ofthe statutory maximum" (People v Santos, 68 NY2d 859, 861 [1986] [emphasisadded]; see CPL 30.30 [4]; People v Lomax, 50 NY2d 351, 357 [1980]).Defendant failed "to come forward with 'sworn allegations supporting all the essentialfacts,' " making nothing beyond a conclusory assertion that the delay was in anyway attributable to the People (People v Blair, 148 AD2d 767, 767 [1989], lvdenied 74 NY2d 661 [1989], quoting CPL 210.45 [5] [b]; see People vLomax, 50 NY2d at 357). County Court was accordingly free to deny his motion todismiss without a hearing.
Defendant next contends that the conviction for criminal sexual act in the first degreewas not supported by legally sufficient evidence and was against the weight of theevidence. He admittedly failed to renew his motion to dismiss the count in the indictmentcharging him with criminal sexual act in the first degree at the close of his proof and, assuch, his challenge to the legal sufficiency of the evidence is unpreserved (see People v Diehl, 128 AD3d1409, 1410 [2015]; Peoplev Race, 78 AD3d 1217, 1219 [2010], lv denied 16 NY3d 835 [2011]).That being said, "since defendant also argues that the verdict was against the weight ofthe evidence, which does not require preservation, 'we will consider the evidenceadduced as to each of the elements of the challenged crime[ ] in the context of thatreview' " (People v Race, 78 AD3d at 1219, quoting People v Vargas, 72 AD3d1114, 1116 [2010], lv denied 15 NY3d 758 [2010]). Assuming withoutdeciding that an acquittal was a reasonable possibility, that analysis obliges us toindependently "weigh conflicting testimony, review any rational inferences that may bedrawn from the evidence and evaluate the strength of such conclusions" in that review,and endeavor to determine "whether [County Court] was justified in finding thedefendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007]; see People v Lane, 7 NY3d888, 890 [2006]).
"A person is guilty of criminal sexual act in the first degree when he or she engagesin oral sexual conduct . . . with another person . . . [b]y forciblecompulsion" (Penal Law § 130.50 [1]; see People v Lancaster, 121 AD3d 1301, 1302 [2014],lv denied 24 NY3d 1121 [2015]). Defendant asserts that he did not succeed inplacing his penis inside the victim's mouth and that, as a result, the requisite oral sexualconduct did not occur. The events at issue occurred at the end of an evening whereindefendant had been drinking at a bar where the victim was working. After theestablishment closed and his taxi had not yet arrived, the victim offered to give defendanta ride home. When they arrived at the destination, defendant grabbed the victim andpulled her out of the vehicle. He then pinned the victim to the ground and, while sheinitially told investigators that defendant attempted to force his penis into her mouth, sheunequivocally testified at trial that he succeeded in doing so. The victim eventuallyescaped and went to the home of a friend, where she summoned the authorities. Aftermaking a statement to investigators, she went to a hospital and was assessed by a sexualassault nurse examiner, who took swabs from the victim's mouth that ultimately testedpositive for the presence of male DNA. While some evidence therefore suggested thatthe requisite "contact between the mouth and the penis" had not occurred (Penal Law§ 130.00 [2] [a]; see Penal Law § 130.50 [1]), wecannot say, after deferring to County Court's "opportunity to view the witnesses, hear thetestimony and observe demeanor," that the conviction for criminal sexual act in the firstdegree was against the weight of the evidence (People v Bleakley, 69 NY2d 490,495 [1987]; see People vDesmond, 118 AD3d 1131, 1133 [2014], lv denied 24 NY3d 1002[2014]).
Defendant failed to preserve for our review his further argument that counts threeand four in the indictment—which charged him with assault in the second degreeand assault in the third degree, respectively—were multiplicitous (see People v Blount, 129AD3d 1303, 1304 [2015]; People v Thompson, 34 AD3d 931, 932 [2006], lvdenied 7 NY3d 929 [2006]). Even if [*3]thatargument had any merit, we would decline to take corrective action in the interest ofjustice and dismiss the allegedly multiplicitous counts, as the sentences imposed uponthem were "effectively subsumed within the" longer concurrent sentence imposed on themore serious charge of criminal sexual act in the first degree (People vThompson, 34 AD3d at 932; see People v Vargas, 72 AD3d 1114, 1120 [2010], lvdenied 15 NY3d 758 [2010]).
Defendant lastly contends that defense counsel was ineffective in various respects.He complains that defense counsel declined a proffered adjournment so that defendantcould consider a plea offer, but a failure to obtain more time for him to consider an offerthat he had already rejected, without more, was not ineffective assistance. Defendantfurther points out that defense counsel focused upon the charge of criminal sexual act inthe first degree to the exclusion of the other counts, but "an attorney is not required toargue factual innocence at the expense of a stronger defense" (People v Baldi, 54NY2d 137, 148 [1981]; accordPeople v Plaisted, 2 AD3d 906, 909-910 [2003], lv denied 2 NY3d 744[2004]). The evidence presented by the People at trial—which documented theevents leading up to the attack, as well as the condition of the victim after it, and revealedthat investigators recovered numerous items of her personal property from the crimescene that corroborated her claim of a violent attack—left little doubt thatdefendant had sexually assaulted the victim. Defense counsel accordingly pursued avalid, if ultimately unsuccessful, trial strategy of assailing the credibility of the victimwith her prior statements and arguing that defendant had not committed the top count inthe indictment (see People v Parch, 59 NY2d 844, 845 [1983]; People vPlaisted, 2 AD3d at 910). Defendant grouses about the performance of defensecounsel in other respects, but we are satisfied that, when "viewed in totality and as of thetime of the representation," he received meaningful representation (People vBaldi, 54 NY2d at 147; seePeople v Heidgen, 22 NY3d 259, 278-279 [2013]).
Peters, P.J., McCarthy, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.