This appeal is from a conviction for four counts of sodomy in the first degree. The Defendant was charged with abusing a young victim on four separate occasions between September and October 2001, when the Defendant was sixteen years old.
Defendant alleged multiple issues on appeal. First, Defendant alleged that the People had to charge the jury with an infancy defense. The court rejected this argument, holding that the charging of such a defense is only necessary if the evidence can adequately support it. Next, Defendant alleged the lower court abused its discretion in determining he could not file a late notice of alibi. The court also rejected this argument because Defendant’s notice was inadequate as it did not identify the place defendant was at the time in question, or any witness information.
The court determined that the next four issues were not properly preserved for appeal and only ruled on two of them. The Defendant argued the indictment lacked specificity and was therefore fatally defective. The court found that even if defendant had properly preserved the issue, the indictment was sufficiently specific. Defendant also claimed his conviction was not supported by the record and that the victim lacked credibility. The court determined those claims lacked merit. The court refused to consider whether the lower court conducted an improper jury selection, or whether the lower court should have reopened the suppression hearing sua sponte.
Defendant next claimed ineffective assistance of counsel because his attorney failed to challenge a juror who claimed she would possibly sympathize with the victim because she was a grandmother. The court rejected that claim because the juror stated she would render a verdict based solely on the court’s instructions. Defendant also claimed ineffective assistance of counsel because his attorney did not renew a motion for a trial order of dismissal. The court held that “defense counsel cannot be deemed ineffective for failing to make a motion or argument that has little or no chance of success.” The court also determined the attorney was not ineffective for failing to raise an objection to a reference made to Defendant’s prior incarceration, as it did deprive him of effective assistance of counsel.
Defendant’s contentions of prosecutorial misconduct were also denied. First, the court determined that the prosecutor’s reference to the defense being a “ruse” and use of the phrases “little boy” and “young boy” were not so egregious as to deprive him of a fair trial. Second, the jury was properly instructed to disregard the prosecutor’s remarks that is was “plausible” that Defendant’s victim later becoming a sex offender.
Finally, the court held that Defendant was not punished for exercising his right to a jury trial as there was no evidence that the sentence was the product of vindictiveness or the Defendant’s decision to reject a plea bargain. Additionally, the court rejected Defendant’s contention that his sentence was unduly severe. The court found that the lower court could have sentenced Defendant consecutively instead of concurrently, his total sentence could have been one hundred years, and the lower court was entitled to take into consideration his prior youthful offender adjudication for sexually abusing an eight-year-old. The mere fact that the final sentence was greater than the plea offer did not provide proof that the Defendant was punished for exercising his right to trial.
Justices Centra and Lindley dissented, arguing that the large disparity between the sentence and the plea offer indicated that the final sentence was unduly harsh and severe. They believed that the sentence should be modified from twenty-five years to fifteen with five years post-release supervision, as a matter of discretion in the interest of justice.
989 N.Y.S. 2d 746, 2014 Slip Op. 05257 (4th Dep’t. 2014)