| People v Vickers |
| 2017 NY Slip Op 02183 [148 AD3d 1535] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Sean Vickers, Also Known as Sean M. Vickers, Also Known as SeanMichael Vickers, Appellant. (Appeal No. 1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Benjamin L. Nelson of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedSeptember 11, 2014. The judgment convicted defendant, upon a jury verdict, of sodomy in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand the amended indictment is dismissed without prejudice to the People to re-present anyappropriate charges to another grand jury.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him followinga jury trial of sodomy in the first degree (Penal Law former § 130.50 [4]). In appealNo. 2, defendant appeals from a judgment convicting him following the same jury trial ofsodomy in the first degree (former § 130.50 [4]), two counts of criminal sexual actin the first degree (§ 130.50 [4]), and sexual abuse in the first degree(§ 130.65 [3]).
The convictions arise from two indictments based upon allegations that defendant sexuallyassaulted or abused five underage victims. The first indictment, which is the subject of appealNo. 1, charged defendant with course of sexual conduct against a child in the first degree (PenalLaw § 130.75 [1] [b]). The second indictment, which is the subject of appeal No. 2,charged defendant with, inter alia, course of sexual conduct against a child in the first degree(§ 130.75 [1] [b]) (count one); two counts of predatory sexual assault against a childon the ground that he committed a course of sexual conduct against a child in the first degree(§§ 130.75 [1] [b]; 130.96) (counts two and six); and sexual abuse in the firstdegree (§ 130.65 [3]) (count 10).
Before trial, County Court granted the People's motion to consolidate the indictments anddenied defendant's cross motion to sever count one from the second indictment. After the close ofproof, the court granted the People's motion to amend the indictments so that the two counts ofcourse of sexual conduct against a child in the first degree, as charged in the first indictment andcount one of the second indictment, were replaced with two counts of sodomy in the first degree(Penal Law former § 130.50 [4]), and the two counts of predatory sexual assaultagainst a child, as charged in counts two and six of the second indictment, were replaced withtwo counts of criminal sexual act in the first degree (§ 130.50 [4]).
Viewing the evidence in light of the elements of the crimes in appeal Nos. 1 and 2 as chargedto the jury (see People v Danielson,9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that the court erred in granting the People's motion toconsolidate the indictments. The offenses charged therein were the "same or similar in law" (CPL200.20 [2] [c]), and defendant failed to demonstrate prejudice resulting from the consolidation(see People v Davey, 134 AD3d1448, 1451 [2015]; People vMolyneaux, 49 AD3d 1220, 1221 [2008], lv denied 10 NY3d 937 [2008]).Contrary to defendant's further contention, the court did not abuse its discretion in denying hismotion to sever count one from the second indictment, inasmuch as defendant failed todemonstrate the requisite good cause for a discretionary severance under CPL 200.20 (3) (see People v Keegan, 133 AD3d1313, 1314 [2015], lv denied 27 NY3d 1152 [2016]; see generally People v McKinnon, 15AD3d 842, 843 [2005], lv denied 4 NY3d 888 [2005]).
Defendant contends that he was denied effective assistance of counsel based on his attorney'sprior representation of two prosecution witnesses. We reject that contention. The court wasapprised of the potential conflict of interest and thus had a duty to "inquire[ ] of defendant toascertain, on the record, whether he had an awareness of the potential risks involved in hiscontinued representation by the attorney and had knowingly chosen to continue suchrepresentation" (People v Lombardo, 61 NY2d 97, 102 [1984]; see People v McCutcheon, 109 AD3d1086, 1087 [2013], lv denied 22 NY3d 1042 [2013]). Although the court erred infailing to conduct such an inquiry, we nonetheless conclude that defendant was not deniedeffective assistance of counsel inasmuch as he failed to demonstrate that "the conduct of hisdefense was in fact affected by the operation of the conflict of interest, or that the conflictoperated on the representation" (People v Ortiz, 76 NY2d 652, 657 [1990] [internalquotation marks omitted]; see McCutcheon, 109 AD3d at 1087). Contrary to defendant'sfurther contention that he was denied effective assistance of counsel based on his attorney'sconstitutionally inadequate performance, we conclude that defendant was afforded meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We agree with defendant, however, that the court erred in granting the People's motion toamend the indictments at the close of proof. The fact that defendant consented to theamendments is of no moment because he has " 'a fundamental and nonwaivable right tobe tried only on the crimes charged' " (People v Graves, 136 AD3d 1347, 1348 [2016], lv denied27 NY3d 1069 [2016]; see People v Powell, 153 AD2d 54, 58 [1989], lv denied75 NY2d 969 [1990]). "An indictment may not be amended in any respect which changes thetheory or theories of the prosecution as reflected in the evidence before the grand jury which filedit" (CPL 200.70 [2]; see People v Grega, 72 NY2d 489, 495-496 [1988]). Unlike thecrimes charged in the amended indictments, the crimes of course of sexual conduct against achild in the first degree and predatory sexual assault against a child based upon allegations thatdefendant committed a course of sexual conduct against a child in the first degree as charged inthe initial indictments do not criminalize a specific act, and thus do not require jury unanimitywith respect to a specific act (see People v Calloway, 176 Misc 2d 161, 165-166 [1998];see generally People v Pabon, 28NY3d 147, 154 [2016]). For that reason, we conclude that the amendments of theindictments "resulted in an impermissible substantive change in the indictment[s] by adding newcounts that changed the theory of the prosecution" (People v Green, 250 AD2d 143, 145[1998], lv denied 93 NY2d 873 [1999]; see generally People v Baker, 123 AD3d 1378, 1380-1381 [2014]).We therefore reverse the judgments insofar as they convicted defendant on those counts, anddismiss those counts of the amended indictments without prejudice to the People to re-presentany appropriate charges under those counts to another grand jury.
In light of our determination, we address defendant's challenge to the severity of the sentenceonly insofar as it concerns count 10 of the amended indictment in appeal No. 2 and conclude thatthe sentence with respect to that count is not unduly harsh and severe. Present—Carni,J.P., Lindley, NeMoyer, Troutman and Scudder, JJ.