| People v Knapp |
| 2016 NY Slip Op 02677 [138 AD3d 1157] |
| April 7, 2016 |
| Appellate Division, Third Department |
[*1](April 7, 2016)
| The People of the State of New York, Respondent, v Timothy L. Knapp, Appellant. |
Robert A. Gouldin, Oneonta, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered July 3, 2012, upon a verdict convicting defendant of the crime ofpredatory sexual assault against a child (four counts).
Defendant was charged in an indictment with four counts of predatory sexual assaultagainst a child as a result of allegations that he subjected the victim (born in 2000) to arange of improper sexual contact in the summer of 2011. Following a jury trial, he wasconvicted as charged. County Court sentenced defendant to an aggregate term of 15 yearsto life in prison, and he now appeals.
We affirm. Defendant failed to preserve for our review his contention that three ofthe four counts in the indictment are multiplicitous (see People v Blount, 129 AD3d 1303, 1304 [2015]; People v Jefferson, 125 AD3d1463, 1464 [2015], lv denied 25 NY3d 990 [2015]). The argument iswithout merit, in any case, as the counts are premised upon separate and distinct types ofsexual contact that occurred during the summer of 2011 (see People v Jefferson,125 AD3d at 1464; People v Brandel, 306 AD2d 860, 860 [2003]; seealso Penal Law §§ 130.35 [4]; 130.50 [4]; 130.96).
Defendant next asserts that the verdict was against the weight of the evidence. Therecord reveals that the victim was 11 years old in the summer of 2011 and that defendantwas caring for her and her siblings while her mother worked. While the victim indicatedthat the [*2]abuse occurred in various rooms of thehouse, she testified that the bulk of the incidents occurred in her mother's bedroom, towhich she would be ordered on various pretexts by defendant. He sexually abused her ina variety of ways in the bedroom, with the victim recounting multiple instances ofvaginal and anal sex. The victim further testified to instances where she was forced toperform oral sex on defendant and where he performed oral sex on her. The victim'syounger sister also testified and recalled incidents when defendant and the victim were inthe bedroom with the door shut during the summer of 2011.
The victim did not disclose the abuse for several months because of threats made bydefendant and concerns that her mother would not believe her, and the mother onlylearned of it after witnessing an argument between defendant and the victim's stepsisterwherein the latter threatened to tell "what [defendant had] been doing" with the victim. Inour view, an acquittal would not have been unreasonable given the absence of physicalevidence establishing that the abuse had occurred, as well as the contentious relationshipsbetween defendant and the victim's family members that might have motivated the victimto fabricate her accusations (seePeople v VanDeusen, 129 AD3d 1325, 1326 [2015], lv denied 26 NY3d972 [2015]). Defendant explored those issues at trial, however, and the jury credited theaccount of the victim that she had been sexually abused by defendant and had never beentold by any of her family members to lie about what had occurred. According greatweight to that credibility determination, as we must, and weighing the conflictingtestimony (see People vKancharla, 23 NY3d 294, 303 [2014]), we do not find the verdict to be againstthe weight of the evidence (seePeople v Adams, 135 AD3d 1154, 1155 [2016]; People v VanDeusen,129 AD3d at 1326).
Defendant further claims that defense counsel was ineffective in failing to procurethe testimony of a physician who had examined the victim in December 2011 and foundher to have a generally normal examination that was nonetheless "consistent with" herclaims of sexual abuse. The People first sought to call the physician to the witness stand,but eventually chose not to do so and represented that they would not attempt tointroduce the examination report into evidence. Defense counsel likewise declined to callthe physician to testify, explaining to County Court that the physician had found nothinginconsistent with the claims of abuse and that, after discussing the issue with defendant,they had elected not to risk placing the physician on the witness stand and obtaining whatcould be damaging testimony. It is accordingly evident that "a strategic reason [existed]for the failure complained of by defendant," as calling the physician could haveinterfered with defense counsel's trial strategy of attacking the credibility of the victimand stressing the absence of physical evidence to show that she had been abused (People v Gross, 26 NY3d689, 694 [2016]; see People v Rivera, 71 NY2d 705, 709 [1988]). Inasmuchas the record in its totality establishes that defense counsel provided meaningfulrepresentation, and the purported error by defense counsel was not "sufficientlyegregious and prejudicial" to call the remainder of his performance into question, we findthat defendant received the effective assistance of counsel (People v Caban, 5 NY3d143, 152 [2005]; see Peoplev Burgos, 90 AD3d 1670, 1670-1671 [2011], lv denied 19 NY3d 862[2012]).
Defendant lastly argues that the sentence imposed was harsh and excessive but, aftertaking into account his long criminal history and the nature of offenses for which he wasconvicted here, we are unpersuaded (see People v Dean, 122 AD3d 1004, 1005 [2014]; People v Hughes, 114 AD3d1021, 1025 [2014], lv denied 23 NY3d 1038 [2014]).
Peters, P.J., Garry, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.