| People v Bullock |
| 2016 NY Slip Op 08126 [145 AD3d 1104] |
| December 1, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew W. Bullock, Appellant. |
Edward W. Goehler, Cortland, for appellant.
Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Chenango County (RevoirJr., J.), rendered November 18, 2013, convicting defendant following a nonjury trial ofthe crimes of criminal sexual act in the second degree (two counts) and endangering thewelfare of a child.
In September 2012, defendant was indicted and charged with two counts of criminalsexual act in the second degree and endangering the welfare of a child. These chargesstemmed from allegations that defendant engaged the victim, who turned 15 years old inMay 2012, in oral and anal sexual conduct in March and April 2012. Defendant waivedhis right to a jury trial and, at the conclusion of the subsequent bench trial, defendant wasconvicted as charged. Defendant now appeals.
Initially, we find that defendant's claim that the verdict was not supported by legallysufficient evidence was not preserved for our review. Defendant made only a generalizedmotion to dismiss at the close of the People's case, and he did not renew his motion todismiss at the close of all the evidence (see People v Lancaster, 143 AD3d 1046, 1047 [2016]; People v Robinson, 123 AD3d1224, 1225 [2014], lv denied 25 NY3d 992 [2015]; People v Simmons, 135 AD3d1193, 1195 [2016], lv denied 27 NY3d 1006 [2016]). Notwithstanding that,"our weight of the evidence review necessarily involves an evaluation of whether allelements of the charged crimes were proven beyond a reasonable doubt" (People vLancaster, 143 AD3d at 1047 [internal quotation marks, brackets and citationsomitted]; see People vRichards, 78 AD3d 1221, 1222 [2010], lv denied 15 NY3d 955 [2010]).As to this review, we must first conclude that an acquittal would not have beenunreasonable and then weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony (see People v Romero, 7 NY3d633, [*2]643-644 [2006]; People v Bleakley,69 NY2d 490, 495 [1987]; People v Lancaster, 143 AD3d at 1047-1048).
A criminal sexual act in the second degree occurs when a person 18 years old orolder "engages in oral sexual conduct or anal sexual conduct with another person lessthan [15] years old" (Penal Law § 130.45 [1]). A defendant endangers thewelfare of a child where he or she, "knowingly acts in a manner likely to be injurious tothe physical, mental or moral welfare of a child less than [17] years old" (Penal Law§ 260.10 [1]). The victim and his family moved into defendant's home atthe end of October 2011, when the victim was 14 years old. At that time, defendant wasalso sharing the home with his former fiancée and her child. The victim testifiedthat, in early March 2012, defendant entered his room and touched him on his penis andthis happened again in defendant's bedroom approximately one week later. The victimfurther testified that a week after that, defendant engaged the victim in oral sexualconduct and, two weeks later, in anal sexual contact. This sequence ended in April2012.
In her testimony, defendant's former fiancée confirmed that defendant wouldspend time alone in the victim's bedroom. She moved out of defendant's house inFebruary 2012 after confronting defendant about the attention he had been giving thevictim. The victim's sister testified that she saw the victim sleeping in defendant's bedduring this same time frame and that she told her mother about this sometime at the endof April 2012. The victim's mother testified that when she asked her son about this, heexplained that he had fallen asleep while he and defendant were watching a movie. Thevictim's mother said that, from that point forward, she made sure that the victim was inhis bedroom at night. During his testimony, defendant denied all of the allegations.
It is not disputed that, in June 2012, defendant made plans to move to Florida andthat, in late July 2012, the victim's mother left defendant's home to move her family intoher boyfriend's home. In early August 2012, the victim's mother and defendant's mothergot into a physical altercation at defendant's home over belongings that had been placedat the curb. According to the victim's mother, the victim reported defendant's conduct toher a few days later and she immediately contacted the State Police. Wesley Mills, a StatePolice investigator who was called as a witness by defendant, testified that he was trainedto interview children victimized by sexual abuse and that he met with the victim onAugust 7, 2012. Mills testified that the victim was unsure of the time frame but that,during the interview, the victim stated that it happened during the month before thefamily left the home; a video recording of this interview was received into evidence.Mills asked the victim's mother to try to get a more exact time frame and, duringcounseling sessions, the victim was able to determine that the sexual acts took placeduring March and April 2012, before he turned 15.
While the timing of the sexual conduct was disputed at trial, County Court heard theconflicting testimony and watched the video recording of Mills interviewing the victim.In our view, given the equivocal evidence with regard to the timing of the contact, anacquittal on the criminal act in the second degree charges would not have beenunreasonable. Nevertheless, County Court considered all the evidence presented, wasaware of the inconsistent evidence and that defendant believed the victim wasencouraged to falsely report the acts after the August 2012 altercation involving hismother. In our view, the victim's testimony was not incredible and, upon our independentconsideration and review of the evidence in a neutral light, we find that the verdict wasnot against the weight of the evidence (see People v Monroe, 134 AD3d 1138, 1140 [2015]; People v Arnold, 85 AD3d1330, 1332 [2011]).
Next, we reject defendant's claim that he received ineffective assistance of counsel.To prevail on such a claim, "defendant must demonstrate [both] that his attorney failed toprovide [*3]meaningful representation . . .[and] the absence of strategic or other legitimate explanations for counsel's allegedlydeficient conduct" (People vCaban, 5 NY3d 143, 152 [2005] [internal quotation marks and citationsomitted]; see People v Rivera, 71 NY2d 705, 709 [1988]). "Counsel'sperformance must be evaluated to determine whether the tactics and strategies wereconsistent with those of a reasonably competent attorney. The test is reasonablecompetence, not perfect representation" (People v Oathout, 21 NY3d 127, 128 [2013] [internalquotation marks and citations omitted]). Here, defendant contends that counsel wasineffective because he did not seek to suppress or object to the introduction of evidencewith regard to prior bad acts between defendant and the victim, failed to effectivelyexamine Mills about the victim's interview and failed to properly subpoena State Policerecords.
First, because defendant's course of conduct against the victim was an essentialelement of the crime of endangering the welfare of a child, we discern no basis forsuppression or objection (seePeople v Fuller, 50 AD3d 1171, 1176 [2008], lv denied 11 NY3d 788[2008]), and "a defendant is not denied the effective assistance of counsel when counselfails to raise issues that have little or no chance of succeeding" (People v Rodriguez, 121 AD3d1435, 1440 [2014], lv denied 24 NY3d 1122 [2015]). As for Mills, defensecounsel specifically examined him about the victim's inconsistent explanations withregard to the timing of the sexual acts and offered the video recording into evidence. Thevideo was played prior to the People's cross-examination of Mills. On redirect, defensecounsel inquired further about the inconsistencies. Contrary to defendant's claim, we findthat defense counsel adequately highlighted the timing issue for the court, and weemphasize that our review does not extend to assessing counsel's performance "with theclarity of hindsight to determine how the defense might have been more effective"(People v Benevento, 91 NY2d 708, 712 [1998]). Finally, inasmuch as Millstestified that the requested records did not exist, we discern no prejudice from defensecounsel's alleged failure to properly subpoena the purported records (see People v Carlton, 120AD3d 1443, 1444-1445 [2014], lv denied 25 NY3d 1070 [2015]).
Peters, P.J., Devine, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.