| People v Cooper |
| 2017 NY Slip Op 04982 [151 AD3d 1831] |
| June 16, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Michael J.Cooper, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (William Clauss of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered June 11, 2013. The judgment convicted defendant, upon a nonjury verdict, of course ofsexual conduct against a child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict ofcourse of sexual conduct against a child in the first degree (Penal Law § 130.75 [1][b]). Contrary to defendant's contention, the evidence is legally sufficient to support theconviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The victim'stestimony established that defendant engaged in two or more acts of sexual conduct with her overmore than three months in duration, and her testimony was not incredible as a matter of law (see generally People v Dupleasis, 112AD3d 1318, 1319 [2013], lv denied 22 NY3d 1138 [2014]; People v Meacham, 84 AD3d1713, 1715 [2011], lv denied 17 NY3d 808 [2011]). In addition, viewing theevidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
Defendant contends that he was denied effective assistance of counsel because defensecounsel failed to move to suppress certain evidence obtained from underneath the porch of hisformer residence. We conclude that "the record on appeal is inadequate to enable us to determinewhether such a motion would have been successful and whether defense counsel was ineffectivefor failing to make that motion and thus, defendant's contention must be raised by way of amotion pursuant to CPL article 440" (People v Walter, 138 AD3d 1479, 1480 [2016], lv denied27 NY3d 1141 [2016]). Indeed, the testimony at the trial suggested that defendant may not havehad standing to bring such a motion inasmuch as he may not have lived at the residence at thetime of the search (see People vBradley, 17 AD3d 1050, 1051 [2005], lv denied 5 NY3d 786 [2005]; Peoplev Sapp, 280 AD2d 906, 906 [2001], lv denied 96 NY2d 834 [2001]), and the area ofthe search was a common area accessible to other tenants of the building (see People v Lovejoy, 92 AD3d1080, 1082 [2012]; see also Peoplev Pucci, 37 AD3d 1068, 1069 [2007], lv denied 8 NY3d 949 [2007]). We rejectdefendant's further contention that he was denied effective assistance of counsel based on defensecounsel's failure to cross-examine two of the witnesses who testified at trial (see People v Thomas, 136 AD3d1390, 1391 [2016], lv denied 27 NY3d 1140 [2016], denied reconsideration28 NY3d 974 [2016]; People vLewis, 67 AD3d 1396, 1396-1397 [2009], lv denied 14 NY3d 772 [2010]). Wehave examined the remaining allegations of ineffective assistance of counsel raised by defendantand conclude that they lack merit. Viewing the evidence, the law and the circumstances of thiscase, in totality and as of the time of representation, we conclude that defense counsel providedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Peradotto,Carni, NeMoyer and Curran, JJ.