| People v Keane |
| 2023 NY Slip Op 05915 [221 AD3d 1586] |
| November 17, 2023 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Timothy C. Keane, Appellant. (Appeal No.1.) |
Todd G. Monahan, Little Falls, for defendant-appellant.
Timothy C. Keane, defendant-appellant pro se.
Kristyna S. Mills, District Attorney, Watertown (Morgan R. Mayer of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered July 19, 2019. The judgment convicted defendant upon a jury verdict ofunlawful manufacture of methamphetamine in the third degree.
It is hereby ordered that the case is held, the decision is reserved, and the matter isremitted to Jefferson County Court for further proceedings in accordance with thefollowing memorandum: In appeal No. 1, defendant was convicted following a jury trialof unlawful manufacture of methamphetamine in the third degree (Penal Law§ 220.73 [1]) and, in appeal No. 2, he was convicted following the samejury trial of sexual abuse in the first degree (§ 130.65 [4]), attempted use ofa child in a sexual performance (§§ 110.00, 263.05), forcible touching(§ 130.52 [1]), and endangering the welfare of a child(§ 260.10 [1]). The criminal investigation of defendant initially focused onhis suspected involvement in a methamphetamine manufacturing operation at a propertywhere he had recently resided. While investigators were searching the vacant property, aneighbor approached one of the detectives and reported his concern about prior contactbetween defendant and the neighbor's 11-year-old daughter. The child was subsequentlyinterviewed and reported that defendant had shown her pornographic videos and sexuallyassaulted her on the front porch of the property under investigation for drug activity.Two indictments were then filed against defendant, one charging him with unlawfulmanufacture of methamphetamine in the third degree and the other charging him withmultiple sex offenses involving the child.
Defendant contends in his main and pro se supplemental briefs that County Courterred in granting the People's motion to consolidate the indictments. We reject thatcontention. The indictments were consolidated for trial pursuant to CPL 200.20, whichpermits a court to consolidate indictments against a defendant when they charge offensesthat involve "different criminal transactions" but "are of such nature that either proof ofthe first offense [or set of offenses] would be material and admissible as evidence inchief upon a trial of the second, or proof of the second would be material and admissibleas evidence in chief upon a trial of the first" (CPL 200.20 [2] [b]; see 200.20 [4];People v Bongarzone, 69 NY2d 892, 895 [1987]). Contrary to defendant'scontention, the evidence of the drug offense and the evidence of the sex offenses wereeach material and admissible to help establish the identity of defendant as the perpetratorof the other offense or set of offenses (see People v Murphy, 28 AD3d 1096, 1097 [4th Dept2006], lv denied 7 NY3d 760 [2006]; see also People v Nelson, 233AD2d 926, 926-927 [4th Dept 1996]). Specifically, inter alia, defendant's recordedinterview with a detective inculpated him in both the drug offense and the sex offenses,and the testimony of two detectives, the victim, and the victim's father was necessary toestablish that defendant was residing on the property at the time that methamphetaminewas being manufactured there and the course of his interactions with the victim at thesame property. We reject defendant's contention in his pro se [*2]supplemental brief that consolidating the indictments fortrial was contrary to People v Molineux (168 NY 264 [1901]) and its progeny,inasmuch as Molineux applies to prior uncharged crimes and bad acts committedby a defendant, not to charged crimes (see People v Cass, 18 NY3d 553, 559 [2012]).
Defendant next contends in his main and pro se supplemental briefs that he wasdenied effective assistance of counsel. We reject that contention. To establish a claim ofineffective assistance of counsel, a defendant must show that defense counsel did notprovide "meaningful representation," based upon "the evidence, the law, and thecircumstances of [the] particular case, viewed in totality and as of the time of therepresentation" (People v Baldi, 54 NY2d 137, 147 [1981]). Defendant'scontentions that his counsel was too harsh in cross-examining the victim, inadvertentlyelicited damaging testimony from a witness on redirect examination, and should not havecalled two of the defense witnesses but should have called another witness, "involve'simple disagreement[s] with strategies, tactics or the scope of possiblecross-examination, weighed long after the trial,' and thus are insufficient to establishineffective assistance of counsel" (People v Kranz, 215 AD3d 1253, 1254 [4th Dept 2023],lv denied 40 NY3d 997 [2023], quoting People v Flores, 84 NY2d 184,187 [1994]). Defendant's contention regarding his own direct testimony cannot form thebasis for an ineffective assistance of counsel claim, because "[t]he fundamental decisionwhether to testify at trial is reserved to the defendant, not defense counsel" (People v Cosby, 82 AD3d63, 66 [4th Dept 2011], lv denied 16 NY3d 857 [2011]), and hisdisagreements with the scope of the questioning itself relate to strategy (see People v Gibson, 173AD3d 1785, 1786 [4th Dept 2019], lv denied 34 NY3d 931 [2019]). Defensecounsel's failure to renew defendant's motion for a trial order of dismissal at the close ofthe defense case did not amount to ineffective assistance because the court had reserveddecision on the motion and, therefore, the claim of insufficiency was preserved (see People v Payne, 3 NY3d266, 273 [2004], rearg denied 3 NY3d 767 [2004]; People v Nowlin, 145 AD3d1447, 1449 [4th Dept 2016], lv denied 29 NY3d 1035 [2017]). Contrary todefendant's contention in his pro se supplemental brief, his defense counsel elicited trialtestimony in support of the conclusion that defendant did not have constructivepossession over methamphetamine manufacturing materials at his former residence.Defendant's contentions in his pro se supplemental brief that his counsel gave him falseinformation, failed to call expert and alibi witnesses, failed to argue that defendant hadan alibi, and failed to pursue arguments that defendant was framed all concern mattersoutside the record, and thus must be raised in a motion pursuant to CPL 440.10 (see People v Johnson, 195AD3d 1420, 1421-1422 [4th Dept 2021], lv denied 37 NY3d 1146 [2021]).To the extent that defendant contends in his pro se supplemental brief that he was deniedeffective assistance of appellate counsel, that contention is premature and must be raisedin an error coram nobis proceeding (see People v Forsythe, 105 AD3d 1430, 1431 [4th Dept2013]).
Defendant also contends in his main brief that the court erred in permitting twodetectives to testify regarding defendant's internet search history and text messagesinvolving sexual role-play, arguing that the testimony was so inflammatory that itsprejudicial effect exceeded its probative value. Trial courts have broad discretion indeciding whether to admit evidence challenged as unduly prejudicial, and a trial court'sdecision will be disturbed only where it has "either abused its discretion or exercisednone at all" (People v Walker, 83 NY2d 455, 459 [1994] [internal quotationmarks omitted]). Here, the evidence elicited during the People's direct case regardingdefendant's sexual proclivities based upon his internet search history and text messageswas admitted for the nonpropensity purpose of corroborating the victim's testimony (see People v Brewer, 129AD3d 1619, 1620 [4th Dept 2015], affd 28 NY3d 271 [2016]), and thesimilar testimony of the detective offered in rebuttal was admitted to contradictdefendant's direct testimony (seegenerally People v Serrano, 196 AD3d 1134, 1137 [4th Dept 2021], lvdenied 37 NY3d 1061 [2021], denied reconsideration 38 NY3d 930 [2022]).We conclude that in both instances the court properly balanced the probative value of theevidence and the prejudice arising from it (see generally People v Bullard-Daniel, 203 AD3d 1630,1632 [4th Dept 2022], lv denied 38 NY3d 1069 [2022]).
Defendant further contends in his main brief that his offenses were treated as a singlecriminal transaction at trial and therefore the consecutive sentence imposed in appeal No.1 was improperly ordered, and, in addition, that the sentences are unduly harsh andsevere. We reject those contentions. Although the drug offense indictment wasconsolidated with the sex offenses indictment for trial pursuant to CPL 200.20, thestatutory elements of the drug offense do not [*3]overlapwith those of the sex offenses, and thus a consecutive sentence was not improper (see People v Burton, 83 AD3d1562, 1563 [4th Dept 2011], lv denied 17 NY3d 805 [2011]). We alsoconclude that the sentence in each appeal is not unduly harsh or severe.
Defendant contends in his pro se supplemental brief that his conviction of unlawfulmanufacture of methamphetamine in the third degree and attempted use of a child in asexual performance is not supported by legally sufficient evidence. We may not addressthat contention, however, because the court did not rule on defendant's motion for a trialorder of dismissal (cf. CPL 290.10 [1]). The failure of a trial court to rule on amotion for a trial order of dismissal cannot be deemed a denial of that motion, and thuswe must hold the case, reserve decision, and remit the matter to County Court for a rulingon defendant's motion (seePeople v Johnson, 192 AD3d 1612, 1616 [4th Dept 2021]; cf. People v DuBois, 200AD3d 1601, 1601 [4th Dept 2021], lv denied 38 NY3d 949 [2022]). In lightof our determination, we do not address defendant's contention that the verdict is againstthe weight of the evidence.
Finally, we have reviewed the remaining contentions in defendant's main and pro sesupplemental briefs and conclude that none warrants modification or reversal of thejudgment. Present—Smith, J.P., Bannister, Ogden, Greenwood and DelConte,JJ.