| People v Langevin |
| 2018 NY Slip Op 06339 [164 AD3d 1597] |
| September 28, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Bruno Langevin, Appellant. |
Galluzzo & Arnone LLP, New York City (Matthew J. Galluzzo of counsel), fordefendant-appellant.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), rendered June28, 2017. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in thefirst degree and sexual abuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalsexual act in the first degree (Penal Law § 130.50 [4]) and sexual abuse in the firstdegree (§ 130.65 [4]), defendant contends that County Court improperly chargedthe jury in response to a jury note about a potential deadlock during deliberations. We reject thatcontention. After less than three hours of deliberations, the jury sent a note asking "what happensif we can't agree on both charges." In response, the court instructed the jury that the court would"send [the jury] back in and tell you to keep working to come to an agreement because the lawrequires a unanimous jury verdict and it would relate to both charges. So I am going to ask you tocontinue your deliberations and do your best to come to an agreement on each of thecharges. It's got to be unanimous" (emphasis added). Thus, although the court informed the jurythat a verdict had to be unanimous, the court did not instruct the jury that a verdict was required.In our view, the court's "supplemental instruction viewed as a whole was simply encouragingrather than coercive and was appropriate in light of the fact that the . . . jury hadbeen deliberating for less than four hours" (People v Ford, 78 NY2d 878, 880 [1991]; see People v Thomas, 113 AD3d447, 447 [1st Dept 2014], lv denied 22 NY3d 1159 [2014]; see generally People v Morgan, 28NY3d 516, 521-522 [2016]).
To the extent that defendant contends that he was denied effective assistance of counselbased on defense counsel's failure to call an expert witness at the Huntley hearing andfailure to call character witnesses at trial, that contention involves matters outside the record onappeal and must therefore be raised by way of a motion pursuant to CPL article 440 (see People v Chander, 140 AD3d1181, 1182-1183 [2d Dept 2016], lv denied 28 NY3d 1026 [2016]; People v Washington, 122 AD3d1406, 1406 [4th Dept 2014], lv denied 25 NY3d 1173 [2015]; People v Kaminski, 109 AD3d1186, 1186 [4th Dept 2013], lv denied 22 NY3d 1088 [2014]). We have considereddefendant's remaining allegation of ineffective assistance of counsel and, viewing the evidence,the law and the circumstances of this case in totality and as of the time of the representation, weconclude that defense counsel provided meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Finally, we conclude that the sentence is not unduly harsh or severe.Present—Whalen, P.J., Centra, Peradotto, Lindley and DeJoseph, JJ.