PEOPLE v. ADAMS (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of sodomy in the first degree (Penal Law former § 130.50[3] ).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “The testimony of the victim was not so inconsistent or unbelievable as to render it incredible as a matter of law” (People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661;  see generally People v. Calabria, 3 N.Y.3d 80, 82, 783 N.Y.S.2d 321, 816 N.E.2d 1257), and we see no reason to disturb the jury's resolution of credibility issues (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant failed to preserve for our review his contention that the indictment lacked the requisite specificity with respect to the dates of the alleged crimes (see generally People v. Soto, 44 N.Y.2d 683, 405 N.Y.S.2d 434, 376 N.E.2d 907).   In any event, that contention lacks merit inasmuch as the time frames set forth in the indictment, i.e., June 1, 2003 through September 30, 2003 and September 1, 2003 through November 25, 2003, were “ ‘sufficiently specific’ in view of the nature of the offense and the age of the victim” (People v. Dickens, 48 A.D.3d 1034, 1035, 849 N.Y.S.2d 837, lv. denied 10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448).   We thus conclude that defense counsel's failure to move to dismiss the indictment for lack of specificity did not constitute ineffective assistance of counsel (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213).

 Contrary to the further contention of defendant, he also was not denied the right to effective assistance of counsel based on defense counsel's elicitation of allegedly damaging testimony in cross-examining the victim's pediatrician or by defense counsel's failure to object to testimony concerning the emotional state of the victim.   Those contentions involve “simple disagreement[s] with strategies, tactics or the scope of possible cross-examination, weighed long after the trial,” and thus are insufficient to establish ineffective assistance of counsel (People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19;  see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The sentence is not unduly harsh or severe.   Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of two counts of criminal sexual act in the first degree (Penal Law § 130.50[3] ), and it must therefore be amended to reflect that he was convicted of two counts of sodomy in the first degree (former § 130.50[3] ) (see generally People v. Saxton, 32 A.D.3d 1286, 821 N.Y.S.2d 353).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: