| People v Machia |
| 2022 NY Slip Op 03942 [206 AD3d 1272] |
| June 16, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher J. Machia, Appellant. |
Thomas F. Garner, Middleburgh, for appellant, and appellant pro se.
Susan J. Mallery, District Attorney, Howes Cave (Kevin P. Mallery of counsel), forrespondent.
Fisher, J. Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.),rendered July 18, 2018, upon a verdict convicting defendant of the crimes of criminal sexual actin the first degree and endangering the welfare of a child.
Defendant was charged by a 26-count indictment with crimes related to his sexual abuse of aminor (hereinafter the victim). Following a jury trial, defendant was convicted of one count eachof criminal sexual act in the first degree and endangering the welfare of a child. County Courtsentenced defendant to a prison term of 12 years, to be followed by 20 years of postreleasesupervision, for his conviction of criminal sexual act and to a lesser concurrent term on hisremaining conviction. Defendant appeals.
We affirm. Defendant argues that the jury verdict is not supported by legally sufficientevidence and is against the weight of the evidence. However, defendant's legal sufficiencychallenge is unpreserved as he failed to make a motion for a trial order of dismissal at the closeof all proof (see People v Abreu,195 AD3d 1152, 1153 [2021], lv denied 37 NY3d 1144 [2021]). Nevertheless, in thecourse of reviewing defendant's challenge to the weight of the evidence, "we necessarilydetermine whether all of the elements of the charged crimes were proven beyond a reasonabledoubt" (People v Barzee, 190 AD3d1016, 1017 [2021] [internal quotation marks and citations omitted], lv denied 36NY3d 1094 [2021]). "When conducting a weight of the evidence review, this Court must firstdetermine whether, based on all the credible evidence, a different finding would not have beenunreasonable and, if not, then weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" (People v Cummings, 188 AD3d1449, 1450 [2020] [internal quotation marks and citations omitted], lv denied 36NY3d 1096 [2021]; accord People vHansel, 200 AD3d 1327, 1328 [2021], lv denied 38 NY3d 927 [2022]). Aweight of the evidence review further requires us to "consider the evidence in a neutral light anddefer to the jury's credibility assessments" (People v Brisman, 200 AD3d 1219, 1219 [2021] [internal quotationmarks and citation omitted], lv denied 37 NY3d 1159 [2022]).
As relevant here, "[a] person is guilty of criminal sexual act in the first degree when he or sheengages in . . . anal sexual conduct with another person . . . [b]yforcible compulsion" (Penal Law § 130.50 [1]). Within the context of sex offenses,forcible compulsion "means to compel by either . . . use of physical force; or. . . a threat, express or implied, which places [the victim] in fear of immediatedeath or physical injury" (Penal Law § 130.00 [8] [a], [b]; see People v Garrand, 189 AD3d1763, 1764 [2020], lv denied 36 NY3d 1120 [2021]). Forcible compulsion isexamined through the victim's state of mind, and relevant factors include the victim's age, his orher relative [*2]size and strength compared to the defendant andthe relationship between the defendant and the victim (see People v Hartle, 159 AD3d 1149, 1152 [2018], lvdenied 31 NY3d 1082 [2018]; People v Robinson, 156 AD3d 1123, 1126 [2017], lvdenied 30 NY3d 1119 [2018]). "A person is guilty of endangering the welfare of a childwhen . . . [h]e or she knowingly acts in a manner likely to be injurious to thephysical, mental or moral welfare of a child less than [17] years old" (Penal Law§ 260.10 [1]).
The victim testified that, in April 2016, she was 13 years old and moved into a rentalproperty with her mother, great-grandmother and two brothers. The victim explained that hergreat-grandmother owned several rental properties in the immediate vicinity around herresidence, including one across the street that was rented to defendant. The victim testified thatshe first met defendant in May 2016 when he had presented himself at her residence with hisrental payment for the great-grandmother. The victim further explained that defendant had askedher mother whether the victim would be interested in providing child care for his three childrenthroughout the summer of 2016. The victim testified that she agreed to babysit defendant'schildren overnight while he was at work and until he got home, which could be anywherebetween 2:00 a.m. and 5:00 a.m. She admitted that she used defendant's computer to accesssocial media websites, with his permission, and she also stated that defendant had multiplecameras set up around his residence that were being monitored on a television set in hisbedroom. According to the victim, defendant began abusing her during the third day ofbabysitting when he began with inappropriate kissing, and such abuse graduated to defendant"becoming more handsy." She also testified that defendant began using a fake Facebook accountunder the name of "Kayden James" to send her messages, including asking her to be "more fun orsexual" by performing oral sex on him or engaging in vaginal intercourse.
The victim testified that, in July 2016, defendant came home from work, forced her into hisbedroom and performed oral sex on her. She testified that defendant continued to perform oralsex on her, touch her, digitally penetrate her and kiss her on a weekly basis in his bedroom. Thevictim testified that this conduct continued to escalate and, in August 2016, defendant camehome from work drunk and—after she declined to go into his bedroom—defendant"got forceful and grabbed [her] wrist and dragged [her] into the bedroom," "pushed [her] onto thebed and held [her] hands above [her] head." The victim averred that defendant "had his kneespushing against [the victim's] thighs so that [she] couldn't move" and then "attempted vaginalsex" but she resisted. She contended that defendant became frustrated and "wound up. . . doing anal sex" without a condom and after applying a lubricant to himself. Thevictim testified that she told defendant [*3]that she "didn't want todo it" and that defendant responded she would be "okay as long as [she] was quiet." The victimfurther testified that, after he finished, she grabbed her clothing and returned home. According tothe victim, defendant texted her to apologize for "coming off forceful or aggressive" and askedwhether she had used the bathroom afterwards. The victim contended that defendant began togive her gifts, including rings—one of which defendant called an "engagementring"—which he kept in a small, black box in his bedroom.
The victim claimed that defendant forcefully engaged in anal sex with her on three occasions,including by pinning her down or tying her hands together above her head. The victim recalledthat, when she tried to get away from defendant on one of those occasions, "[h]e grabbed [her]arm and pulled [her] back and told [her] that if [she] didn't like it the way he did then [she]needed to start to or he would tell and [she] would get taken away." The victim testified that shehad been frightened by this encounter and explained that she did not disclose the abuse earlierbecause defendant threatened to send her mother, who was on probation, to jail. He alsothreatened to cause harm to the victim's great-grandmother.
Several other fact witnesses testified, including multiple members of law enforcement whorecovered text message conversations between defendant and the victim. This included theconversation where defendant told the victim that he "felt bad" for being "forceful," and then asubsequent message asking the victim whether she went "to the bathroom" afterwards to "get meout of you." Law enforcement also recovered a black box from defendant's bedroom andobserved a television that was set up as a "monitoring screen." An investigator testified that,during the execution of a search warrant on defendant's residence, defendant's cell phone wasrepetitively dinging, which defendant explained was set up to alert him to "capture whateverFacebook messages that [the victim] would send and/or receive." According to the investigator,defendant expressed his belief that he had a "legal right" to do this because the victim "loggedinto his computer at his residence."
Defendant also testified at trial, denying that he ever forced himself on the victim, struck heror engaged in any sexual activity with her. Defendant further denied that he purchased an"engagement ring" for the victim, but admitted he had purchased her other rings that she had"expressed interest" in and some other gifts. He also admitted that he had cameras in hisresidence and that the television was set up in his bedroom for monitoring to protect himselffrom allegations by his estranged spouse. However, defendant did not know who Kayden Jameswas or why that profile appeared on his cellphone. Defendant also contended that the textmessages recovered by law enforcement came from his second cell phone that was set up as a"hotspot" [*4]and could not send SMS messages, therefore hedenied sending those messages.
Although a contrary verdict would not have been unreasonable had the jury crediteddefendant's testimony, "the victim was extensively cross-examined regarding the incidents andher account was not contradicted by any compelling evidence and was not so unworthy of beliefas to be incredible as a matter of law" (People v Maisonette, 192 AD3d 1325, 1327 [2021] [internalquotation marks, brackets and citation omitted], lv denied 37 NY3d 966 [2021]; see People v Butkiewicz, 175 AD3d792, 793 [2019], lv denied 34 NY3d 1076 [2019]). "As to the element of forciblecompulsion, the existence of an implied threat is established by a subjective inquiry into what avictim feared a defendant might have done if he or she did not comply" (People vGarrand, 189 AD3d at 1767 [internal quotation marks, brackets and citations omitted]).Moreover, the victim's testimony that defendant did, in fact, use physical force (i.e., his bodyweight and extremities) to pin her down and otherwise restrain her is sufficient to satisfy theelement of forcible compulsion (see Penal Law § 130.00 [8] [a]; People v Blackman, 90 AD3d1304, 1306-1307 [2011], lv denied 19 NY3d 971 [2012]). To that extent, and"tak[ing] into consideration the young age of the victim, her relative size and strength comparedto the adult defendant, defendant's close relationship to the victim and position of trust andauthority," and mindful that "forcible compulsion is not synonymous with violence," we find theverdict convicting defendant of criminal sexual act in the first degree to be supported by theweight of the evidence (People v Hartle, 159 AD3d at 1152 [internal quotation marks andcitations omitted]; see People v Maisonette, 192 AD3d at 1327; People vRobinson, 156 AD3d at 1126). "As to endangering the welfare of the child, the nature ofdefendant's conduct, his request that the victim keep it a secret" and his threats to the victim"establish that he was aware that his conduct may likely result in harm to [the victim]"(People v Cummings, 188 AD3d at 1454 [internal quotation marks, brackets and citationomitted]). Accordingly, "[v]iewing the evidence in a neutral light and deferring to the jury'scredibility assessments," we find that the verdict on the engendering count "is amply supportedby the weight of the evidence" (People vJohnson, 183 AD3d 77, 87-88 [2020], lv denied 35 NY3d 993 [2020]; seePeople v Garrand, 189 AD3d at 1767; People v Saxe, 174 AD3d 958, 960 [2019]).
Next, defendant contends that he was not afforded meaningful representation for severalreasons. "In order to sustain a claim of ineffective assistance of counsel, a court must considerwhether defense counsel's actions at trial constituted egregious and prejudicial error such that thedefendant did not receive a fair trial" (People v Campbell, 196 AD3d 834, 838 [2021] [internal quotationmarks, brackets and citations omitted], lv denied [*5]37NY3d 1025 [2021]; see People vSmith, 193 AD3d 1260, 1267 [2021], lv denied 37 NY3d 968 [2021]). Inexamining "whether a defendant has been deprived of effective assistance, a court must examinewhether the evidence, the law, and the circumstances of a particular case, viewed in totality andas of the time of the representation, reveal that the attorney provided meaningful representation"(People v Sposito, 37 NY3d1149, 1150 [2022] [internal quotation marks and citations omitted]; see People v Davis, 200 AD3d1200, 1207 [2021]). "The burden is on the defendant to demonstrate the absence of strategicor other legitimate explanations for counsel's choices" (People v White-Span, 182 AD3d 909, 915 [2020] [internalquotation marks and citation omitted], lv denied 35 NY3d 1071 [2020]; see People v Green, 190 AD3d1094, 1100-1101 [2021], lv denied 36 NY3d 1097 [2021]).
Defendant asserts that counsel was ineffective for his purported waiver or forfeiture of aHuntley hearing. The record reflects that counsel initially requested a Huntleyhearing in defendant's omnibus motion but, prior to such a hearing, conceded to the admissibilityof the statement in question. As a result, County Court determined that a Huntley hearingwas no longer necessary. We find no error with this waiver and stipulation to the admissibility ofdefendant's statement to law enforcement as a "review of the trial evidence reveals that it isunlikely that a suppression motion, if [not withdrawn], would have been successful" (People v Spencer, 169 AD3d1268, 1271 [2019], lv denied 34 NY3d 938 [2019]; see People v Hall, 147 AD3d1151, 1152 [2017], lv denied 29 NY3d 1080 [2017]; see generally People vAldrich, 243 AD2d 856, 857 [1997], lv denied 91 NY2d 888 [1998]). Similarly, inlight of our determination that defendant's conviction is not against the weight of the evidence(see People v Saunders, 176 AD3d1384, 1391 [2019], lv denied 35 NY3d 973 [2020]; People v Barzee, 190AD3d at 1017), defendant's argument that defense counsel was ineffective because he failed tomake a motion for a trial order of dismissal is without merit since "[c]ounsel will not be found tobe ineffective on the basis that he or she failed to make an argument or motion that has little orno chance of success" (People vBrown, 169 AD3d 1258, 1260 [2019] [internal quotation marks and citation omitted],lv denied 33 NY3d 1029 [2019]; see People v Bombard, 187 AD3d 1417, 1420 [2020]). We furtherreject defendant's contention that he received ineffective assistance of counsel based upon histrial counsel's opening and closing statements (see People v Damon, 200 AD3d 1323, 1326 [2021]; People v Lafountain, 200 AD3d1211, 1216 [2021], lv denied 38 NY3d 951 [2022]). Considering that defensecounsel obtained an acquittal on 24 counts, when "[v]iewed as a whole, the trial record revealsthat defendant received meaningful representation" (People v Johnson, 183 AD3d at 91;see People v Campbell, 196 AD3d [*6]at 839; People v Porter, 184 AD3d 1014,1019-1020 [2020], lv denied 35 NY3d 1069 [2020]).
We further reject defendant's claim that the sentence imposed was harsh and excessive.Although, as defendant contends, his presentence investigative report reveals no substantialcriminal history and that he has a low risk of recidivism, that does not detract from the seriousnature of the offense or the significant impact that defendant's actions had on the victim (seePeople v Johnson, 183 AD3d at 91; People v Hartle, 159 AD3d at 1155; People v Kalina, 149 AD3d 1264,1267-1268 [2017], lv denied 29 NY3d 1092 [2017]). Inasmuch as the sentence imposedfell toward the middle of the sentencing range (see Penal Law §§ 70.02[3] [a]; 70.45 [2-a] [f]; 130.25 [1]), we do not find the sentence to be unduly harsh or severe(see CPL 470.15 [6] [b]).
Egan Jr., J.P., Clark, Reynolds Fitzgerald and McShan, JJ., concur. Ordered that thejudgment is affirmed.