| People v Graves |
| 2016 NY Slip Op 00853 [136 AD3d 1347] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRaymond Graves, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered June 26, 2012. The judgment convicted defendant, upon a jury verdict, ofpredatory sexual assault against a child (two counts), criminal sexual act in the seconddegree (19 counts), rape in the second degree (16 counts) and endangering the welfare ofa child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing those parts convicting defendant of two counts of predatory sexualassault against a child, 16 counts of criminal sexual act in the second degree, and twocounts of endangering the welfare of a child and vacating the sentence imposed on thosecounts, and as modified the judgment is affirmed, and a new trial is granted on counts 1,4, 5, 10 through 13, 17 through 28, and 45 of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of predatory sexual assault against a child (Penal Law§ 130.96), 19 counts of criminal sexual act in the second degree(§ 130.45 [1]), 16 counts of rape in the second degree(§ 130.30 [1]) and two counts of endangering the welfare of a child(§ 260.10 [1]). We reject the contention of defendant that the conviction isnot supported by legally sufficient evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that "there is avalid line of reasoning and permissible inferences to support the jury's finding thatdefendant committed the crimes of which he was convicted based on the evidencepresented at trial" (People vSpencer, 119 AD3d 1411, 1413-1414 [2014], lv denied 24 NY3d 965[2014]). Likewise, viewing the evidence in light of the elements of the crimes as chargedto the jury (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).
We agree with defendant, however, that we must reverse the conviction of predatorysexual assault under counts 1 and 5, criminal sexual act under counts 10 through 13 and17 through 28, and endangering the welfare of a child under counts 4 and 45, becauseCounty Court's instructions created the possibility that the jury convicted him based ontheories different from those set forth in the indictment, as limited by the bill ofparticulars. We therefore modify the judgment accordingly.
Although defendant did not object to the court's instructions and thus did notpreserve his contention for our review, we conclude that "preservation is not required"(People v Greaves, 1 AD3d979, 980 [2003]), inasmuch as "defendant has a fundamental and nonwaivable rightto be tried only on the crimes charged," as limited by either the bill of particulars or theindictment itself (People vDuell, 124 AD3d 1225, 1226 [2015] [internal quotation marks omitted], lvdenied 26 NY3d 967 [2015]; see Greaves, 1 AD3d at 980; People vBurns, 303 AD2d 1032, 1033 [2003]). Where the court's jury instruction on aparticular count erroneously contains an additional theory that differs from [*2]the theory alleged in the indictment, as limited by the bill ofparticulars, and the evidence adduced at trial could have established either theory,reversal of the conviction on that count is required because there is a possibility that thejury could have convicted the defendant upon the uncharged theory (see People vMartinez, 83 NY2d 26, 32-35 [1993]; People v Grega, 72 NY2d 489, 496[1988]; Greaves, 1 AD3d at 980-981; Burns, 303 AD2d at 1033-1034).Indeed, such an error cannot be deemed harmless because it is impossible for an appellatecourt reviewing a general verdict to ascertain on which theory the jury convicted thedefendant or whether the jury was unanimous with respect to the theory actually chargedin that count (see Martinez, 83 NY2d at 34-36; Burns, 303 AD2d at1033-1034).
Here, counts 1 and 5 of the indictment, as limited by the bill of particulars, chargeddefendant with committing predatory sexual assault against a child by engaging in two ormore acts of oral sexual "contact" with each victim consisting of "contact between themouth and the penis" (Penal Law § 130.00 [2] [a]; see§§ 130.75 [1] [b]; 130.96). The court's instructions, however,permitted the jury to convict defendant upon a finding that he engaged in two or moreacts of sexual conduct with each victim, which included "contact between. . . the mouth and the . . . vagina" (§ 130.00 [2][a]), as well as sexual contact by touching, either directly or through clothing, the sexualor intimate parts of the victims for the purpose of sexual gratification (see§ 130.00 [3]). The People adduced evidence at trial that defendant engagedin those additional forms of sexual conduct with the victims during the relevant timeframes. Thus, defendant's conviction of predatory sexual assault against a child undercounts 1 and 5 must be reversed because the jury, or members thereof, could haveconvicted defendant upon an uncharged theory (see Greaves, 1 AD3d at 980-981;Burns, 303 AD2d at 1033-1034; see generally Grega, 72 NY2d at 496; People v Gunther, 67 AD3d1477, 1477-1478 [2009]). The People contend that any error was harmless becausethere is no basis on this record to conclude that the jury convicted defendant ofcommitting instances of uncharged sexual conduct, but not the conduct charged in theindictment, as limited by the bill of particulars. We reject that contention. Where, as here,there is evidence establishing uncharged theories, thus rendering it impossible for us todetermine whether the verdict was based on such uncharged theories, we may not employa harmless error analysis and, "in effect, assume the jury's fact-finding function byconcluding that the jury must have reached its result on [the charged theories only]"(Martinez, 83 NY2d at 35).
We further agree with defendant that the court's instruction with respect to thecharges of criminal sexual act under counts 10 through 13 and 17 through 28 permittedthe jury to convict him upon a theory not charged in the indictment, as limited by the billof particulars. The bill of particulars alleged that defendant had engaged in oral sexualconduct with one of the victims consisting of contact between the mouth and the penis,whereas the court's erroneous instruction permitted the jury to convict defendant alsoupon a finding that he engaged in oral sexual conduct involving contact between themouth and the vagina (see Penal Law §§ 130.00 [2] [a];130.45 [1]). The People adduced evidence at trial that defendant's acts against the victimduring the relevant time periods included contact between the mouth and the vagina and,thus, we conclude that the jury, or members thereof, could have convicted defendantupon an uncharged theory (see Greaves, 1 AD3d at 980-981; Burns, 303AD2d at 1033-1034).
In addition, we conclude that defendant's conviction of endangering the welfare of achild under counts 4 and 45 must be reversed based on the same rationale. The jury, ormembers thereof, could have convicted defendant on uncharged theories because thecourt's instruction permitted the jury to convict defendant upon a finding that he"knowingly act[ed] in a manner likely to be injurious to the physical, mental or moralwelfare" of the victims (Penal Law § 260.10 [1]) without limiting the jury'sconsideration to the particular acts of sexual "contact" alleged in the bill of particulars.Here, the People adduced evidence at trial of additional acts constituting unchargedtheories of that crime.
Defendant failed to preserve for our review his further contention that certain countsof the indictment were rendered duplicitous by evidence adduced at trial (see People v Allen, 24 NY3d441, 449-450 [2014]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]; People v Brown, 82AD3d 1698, 1700 [2011], lv denied 17 NY3d 792 [2011]). We rejectdefendant's contention that he was denied effective assistance of counsel based on,among other things, defense counsel's failure to move to dismiss the subject counts of theindictment as duplicitous. "To prevail on a claim of ineffective assistance of counsel, it isincumbent on defendant to demonstrate the absence of strategic or [*3]other legitimate explanations for [defense] counsel's failureto [make such a motion]" (People v Rivera, 71 NY2d 705, 709 [1988]). Here, weconclude that "defendant failed to meet that burden, and thus defense counsel's purportedfailure, without more, is insufficient to demonstrate ineffective assistance"(Brown, 82 AD3d at 1700-1701 [internal quotation marks omitted]). Viewing theevidence, 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]). Indeed, the record establishesthat defense counsel made a clear and cogent opening statement directed at the credibilityof the witnesses and the requirement that the People prove defendant's guilt beyond areasonable doubt, lodged appropriate objections, conducted meaningfulcross-examination of the witnesses that raised some inconsistencies in their testimonyand attempted to cast doubt on their veracity, and presented a closing argumentquestioning the credibility of the People's witnesses and arguing that the victims'testimony was too vague to establish defendant's guilt beyond a reasonable doubt (see generally People vAlexander, 109 AD3d 1083, 1085 [2013]).
Defendant failed to preserve for our review his further contention that he wasdeprived of the right to fair notice of the charges against him because the ranges of datesin the indictment during which the offenses allegedly occurred were overbroad (see People v Erle, 83 AD3d1442, 1443 [2011], lv denied 17 NY3d 794 [2011]). In any event, weconclude that, " '[i]n view of the age[s] of the victim[s] and the date on which[they] reported the crimes, . . . the one-month . . . periodsspecified in the indictment provided defendant with adequate notice of the chargesagainst him to enable him to prepare a defense' " (People v Coapman, 90 AD3d1681, 1682 [2011], lv denied 18 NY3d 956 [2012]; see Spencer, 119AD3d at 1413).
By failing to object to any of the alleged instances of prosecutorial misconduct,defendant failed to preserve for our review his contention with respect thereto(see CPL 470.05 [2]). In any event, we conclude that "[a]ny improprieties werenot so pervasive or egregious as to deprive defendant of a fair trial" (People v Jackson, 108 AD3d1079, 1080 [2013], lv denied 22 NY3d 997 [2013] [internal quotation marksomitted]).
Finally, we conclude that the sentence imposed on the remaining counts of theindictment is not unduly harsh or severe. Present—Smith, J.P., Peradotto, Lindley,Whalen and DeJoseph, JJ.