| People v Wolf |
| 2017 NY Slip Op 05271 [151 AD3d 1459] |
| June 29, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert S. Wolf, Appellant. |
Kathryn S. Dell, Troy, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.
Lynch, J. Appeal from a judgment of the County Court of Rensselaer County (Young, J.),rendered September 4, 2013, upon a verdict convicting defendant of the crimes of course ofsexual conduct against a child in the first degree (two counts) and endangering the welfare of achild.
Defendant was charged by indictment with the crimes of course of sexual conduct against achild in the first degree (two counts) and endangering the welfare of a child, stemming fromallegations that he engaged in sexual contact with the victim (born in 1998) on a number ofoccasions in 2008 and 2009. A jury trial scheduled to begin in June 2013 terminated in a mistrialafter defendant failed to serve a timely notice of alibi. County Court permitted defendant to file alate notice of alibi, a second trial commenced in August 2013 and a jury convicted defendant ofall counts charged. The court sentenced defendant to a prison term of 17
Defendant argues that the indictment was not sufficiently specific with respect to the courseof sexual conduct counts. As relevant here, an indictment must contain "[a] statement in eachcount that the offense charged therein was committed on, or on or about, a designated date, orduring a designated period of time" (CPL 200.50 [6]). "[T]he requirements for a valid indictmentwill vary with the particular crime involved, and what is sufficient to charge [one crime] wouldbe insufficient with respect to many other crimes" (People v Morris, 61 NY2d 290, [*2]294 [1984] [internal quotation marks and citation omitted])." 'An indictment will not be dismissed as defective under CPL 200.50 with respect to thetime period alleged for the commission of a crime, if it or, in some instances, the bill ofparticulars provides a reasonable approximation, under the circumstances of the individual case,of the date or dates involved' " (People v LaPage, 53 AD3d 693, 694-695 [2008], quotingPeople v Morris, 61 NY2d at 292).
Since the crimes charged here are continuing offenses (see People v Muhina, 66 AD3d 1397, 1398 [2009], lvdenied 13 NY3d 909 [2009]), the notice requirements of CPL 200.50 "are relaxed" (People v Johnson, 24 AD3d 967,968 [2005], lv denied 6 NY3d 814 [2006]; see People v Colf, 286 AD2d 888,888-889 [2001], lv denied 97 NY2d 655 [2001]). The indictment alleges that defendantengaged in two or more types of sexual conduct with the victim, who was less than 11 years old,during two separate periods—from September 2008 through January 2009 and from April2009 through August 2009. By definition, counts 1 and 2 of the indictment required that theconduct occur "over a period of time not less than three months in duration" (Penal Law§ 130.75 [1]; see People vSkeen, 139 AD3d 1179, 1180 [2016], lv denied 27 NY3d 1155 [2016]).Although the victim did not testify as to the exact dates that the sexual contact occurred, she didrecall when the conduct first began and that it continued to happen on Sundays every otherweekend, that it stopped for a period of time and then began again on a regular basis during theweek. Under the circumstances presented, the time period set forth in the indictment wassufficient to allow defendant to prepare a defense and, if necessary, to permit him to raise thedouble jeopardy defense (see People v Morris, 61 NY2d at 296-297; People vMuhina, 66 AD3d at 1398; People v Johnson, 24 AD3d at 968).
Next, defendant claims that he was deprived of the effective assistance of counsel. Such aclaim must be supported with proof "that his attorney failed to provide meaningfulrepresentation" and that there was no "strategic or other legitimate explanations for counsel'sallegedly deficient conduct" (People vCaban, 5 NY3d 143, 152 [2005] [internal quotation marks and citation omitted]; see People v Bullock, 145 AD3d1104, 1106 [2016]). In assessing such a claim, we must determine, without the benefit ofhindsight (see People v Benevento, 91 NY2d 708, 712 [1998]), whether "the evidence,the law, and the circumstances of [the] particular case, viewed in totality . . . , revealthat the attorney provided meaningful representation" (People v Oathout, 21 NY3d 127, 128 [2013] [internal quotationmarks and citations omitted]). Further, we must evaluate "whether the tactics and strategies wereconsistent with those of a reasonably competent attorney. The test is reasonable competence, notperfect representation" (id. [internal quotation marks and citations omitted]). In supportof his claim, defendant cites, among other things, defense counsel's failure to serve a timelynotice of alibi, failure to qualify his witness as an expert, troubling statements during the courseof the trial, unsuccessful attempts to impeach the victim through other witnesses and attempts tointroduce an order of protection issued against defendant in favor of the victim and to introducethe victim's medical records.
Of the myriad complaints raised by defendant, the most compelling is trial counsel'sstatement during his cross-examination of the People's expert clinical and forensic psychologistthat he was "a half-step off all day yesterday [and] . . . three-quarters of a step offtoday." This statement was made after he attempted, without success, to elicit medical evidencefrom the witness. Defense counsel abandoned the line of questioning and continued thecross-examination and defendant did not raise any concerns about defense counsel's performance.That afternoon, County Court, recalling the statement, duly inquired in defendant's presencewhether trial counsel had any condition that "in any way impacted [his] ability to provideappropriate representation to . . . [d]efendant." Trial counsel explained that he wasmerely trying to explain why he was "not . . . able to get the words that [he]need[ed] . . . and not able to answer as quickly" and assured the court and thePeople that there was nothing "wrong with [him]." In [*3]context,we find that defense counsel's statement was concerning, but the record does not reflect that helacked capacity.
Next, we are mindful that, in certain circumstances, the failure to file a timely notice of alibimay constitute ineffective assistance (see People v Milazo, 18 AD3d 1068, 1070 [2005]). Here, however,after trial counsel argued that the indictment did not provide adequate notice, County Courtallowed defendant to file a notice of alibi after the mistrial and counsel was able to elicittestimony from defendant's sister to establish that he was out of the home for certain periods.When we consider the circumstances of this case—particularly the victim's testimony thatthe conduct was continuous—we are unable to conclude that any errors with regard todefendant's alibi defense deprived defendant of meaningful representation (see People v Djanie, 31 AD3d 887,888 [2006], lv denied 7 NY3d 866 [2006]).
As for defendant's remaining complaints with regard to defense counsel's performance, weare unable to conclude that defense counsel committed any "egregious and prejudicial error suchthat defendant did not receive a fair trial" (People v Oathout, 21 NY3d at 131 [internalquotation marks and citation omitted]). Counsel's initial failure to qualify a witness was harmlessbecause it was corrected, counsel did attempt to impeach the witness with regard to priorinconsistent statements and, although it is not clear why defense counsel attempted to introducepurportedly damaging records, it is apparent that the records were never introduced. As a whole,the record reveals that, in the face of the People's case, supported by the victim's testimony,defense counsel attempted to cast doubt on the victim's credibility by making appropriate pretrialmotions, raised objections that successfully limited certain testimony during the trial, effectivelycross-examined the People's witnesses, presented expert testimony on defendant's behalf andgave comprehensive and organized opening and closing statements. In sum, although our reviewof the totality of the record may reveal that errors were made, it is not apparent that any errorswere prejudicial, and we find that defendant received meaningful representation (see People v Perry, 148 AD3d1224, 1226 [2017]; People vFiorino, 130 AD3d 1376, 1381 [2015], lv denied 26 NY3d 1087 [2015]).
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.