| People v Black |
| 2016 NY Slip Op 02212 [137 AD3d 1679] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vHarvey Black, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.),rendered August 4, 2014. The judgment convicted defendant, upon a jury verdict, ofsexual abuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of sexual abuse in the first degree (Penal Law § 130.65 [1]).Defendant failed to seek dismissal of a sworn juror on the ground that the juror wasgrossly unqualified, and thus he failed to preserve for our review his contention thatCounty Court erred in refusing to grant that relief (see CPL 470.05 [2]; People v Swank, 109 AD3d1089, 1090 [2013], lv denied 23 NY3d 968 [2014]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Additionally, we reject defendant's contention that hewas deprived of defense counsel's judgment in deciding whether to request the court tocharge the jury with a lesser-included offense. Defense counsel originally requested alesser-included offense charge, but after an off-the-record discussion with defendant,defense counsel agreed to forgo such a charge. Furthermore, during the chargeconference, defendant confirmed that he had adequate time to confer with defensecounsel regarding the lesser-included offense charge, and defense counsel agreed toforgo the charge on the record. The record therefore demonstrates that, "after discussingthe issue at length, defense counsel agreed with or acceded to defendant's position" (People v Gottsche, 118 AD3d1303, 1304-1305 [2014], lv denied 24 NY3d 1084 [2014]), and we concludethat "there is nothing in the record to establish that the decision to forgo the submissionof lesser-included offenses was made solely in deference to defendant, that it was againstthe advice of defendant's counsel, or that it was inconsistent with defense counsel's trialstrategy" (id. at 1304).
Defendant also contends that the evidence is legally insufficient to support theconviction, and that the verdict is against the weight of the evidence inasmuch as thePeople failed to prove the element of forcible compulsion. Defendant failed to preservehis legal sufficiency contention for our review because his motion for a trial order ofdismissal "was not specifically directed" at that ground (People v Vassar, 30 AD3d1051, 1052 [2006], lv denied 7 NY3d 796 [2006]; see People v Gray,86 NY2d 10, 19 [1995]). In any event, contrary to defendant's contention, we concludethat the evidence, viewed in the light most favorable to the People, is legally sufficient toestablish that he subjected the victim to sexual contact by forcible compulsion (see People v Gibson, 134AD3d 1512, 1513 [2015]). Viewing the evidence in light of the elements of thecrime as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we further conclude that theverdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]).
We reject defendant's further contention that he was denied effective assistance ofcounsel. Defendant has failed to establish the absence of any strategic or other legitimate[*2]explanation for defense counsel's alleged errorsduring voir dire of the jury (seegenerally People v Caban, 5 NY3d 143, 152 [2005]), or for defense counsel'sfailure to call an expert witness (see People v Maxey, 129 AD3d 1664, 1665 [2015]). Wealso reject defendant's contention that he was deprived of the right to effective assistanceof counsel based on defense counsel's cross-examination of prosecution witnesses (see People v Williams, 110AD3d 1458, 1459-1460 [2013], lv denied 22 NY3d 1160 [2014]), as"[s]peculation that a more vigorous cross-examination might have [undermined thecredibility of a witness] does not establish ineffectiveness of counsel" (People v Bassett, 55 AD3d1434, 1438 [2008], lv denied 11 NY3d 922 [2009] [internal quotation marksomitted]). Thus, we conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant has failed to preserve for our review his contention that he was deprivedof a fair trial by prosecutorial misconduct inasmuch as he did not object to any allegedinstances thereof (see People vJemes, 132 AD3d 1361, 1362-1363 [2015], lv denied 26 NY3d 1110[2016]), and we decline to exercise our power to review the contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). In any event, weconclude that none of the prosecutor's comments on summation were so egregious as todeprive defendant of a fair trial (see People v Paul, 78 AD3d 1684, 1684-1685 [2010],lv denied 16 NY3d 834 [2011]), and defense counsel's failure to object to thosecomments did not deprive defendant of effective assistance of counsel (see People v Koonce, 111AD3d 1277, 1279 [2013]).
Defendant's contention that the court erred in handling a note received from a jurorduring the trial is not preserved for our review (see generally People v Nealon, 26 NY3d 152, 160 [2015];People v Starling, 85 NY2d 509, 516 [1995]), and we decline to exercise ourpower to review it as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Finally, defendant's sentence is not unduly harsh or severe.Present—Whalen, P.J., Lindley, DeJoseph, Nemoyer and Troutman, JJ.