PEOPLE v. HUFNAGLE (2024)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) and one count of endangering the welfare of a child (§ 260.10 [1]). Initially, we conclude that defendant “ ‘failed to preserve for our review his contention that he did not knowingly, voluntarily and intelligently waive the right to a jury trial inasmuch as he did not challenge the adequacy of his allocution with respect to the waiver’ ” (People v. Evans, 206 A.D.3d 1613, 1614, 167 N.Y.S.3d 887 [4th Dept. 2022], lv denied 38 N.Y.3d 1133, 172 N.Y.S.3d 863, 193 N.E.3d 528 [2022]; see People v. Barnett, 221 A.D.3d 1421, 1422, 200 N.Y.S.3d 559 [4th Dept. 2023], lv denied 41 N.Y.3d 964, 208 N.Y.S.3d 524, 232 N.E.3d 202 [2024]). In any event, defendant's contention lacks merit. The record establishes that defendant “ ‘was advised of, understood and knowingly waived his right to a jury trial, after discussing it with counsel and signing a written waiver of jury trial in open court’ ” (Evans, 206 A.D.3d at 1614, 167 N.Y.S.3d 887; see generally People v. Smith, 6 N.Y.3d 827, 828, 817 N.Y.S.2d 575, 850 N.E.2d 622 [2006], cert denied 548 U.S. 905, 126 S.Ct. 2971, 165 L.Ed.2d 953 [2006]). Inasmuch as defendant's mental competency was established by a CPL article 730 examination, there is “no reason to doubt his capacity to waive a jury trial” (People v. Sanchez, 201 A.D.3d 599, 600, 160 N.Y.S.3d 247 [1st Dept. 2022], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 365, 188 N.E.3d 557 [2022]; see People v. Campos, 93 A.D.3d 581, 582-583, 940 N.Y.S.2d 634 [1st Dept. 2012], lv denied 19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764 [2012]).

Contrary to defendant's contention, we conclude that the evidence, viewed in the light most favorable to the People (see People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011]), is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). The sworn testimony of the minor victim that defendant inappropriately touched her vagina is legally sufficient to support the conviction of sexual abuse in the first degree (see Penal Law § 130.65 [3]; People v. Russell, 50 A.D.3d 1569, 1569, 857 N.Y.S.2d 398 [4th Dept. 2008], lv denied 10 N.Y.3d 939, 862 N.Y.S.2d 346, 892 N.E.2d 412 [2008]; see also People v. Scerbo, 74 A.D.3d 1730, 1731-1732, 903 N.Y.S.2d 621 [4th Dept. 2010], lv denied 15 N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229 [2010]), and “[b]ecause the evidence ․ [is] legally sufficient with respect to [defendant's] conviction of sexual abuse, it necessarily also [is] legally sufficient with respect to the conviction of endangering the welfare of a child” (Scerbo, 74 A.D.3d at 1732, 903 N.Y.S.2d 621; see generally § 260.10 [1]).

Furthermore, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference” (People v. Kouao, 177 A.D.3d 1335, 1335, 110 N.Y.S.3d 391 [4th Dept. 2019], lv denied 34 N.Y.3d 1160, 120 N.Y.S.3d 236, 142 N.E.3d 1138 [2020] [internal quotation marks omitted]; see People v. McCoy, 100 A.D.3d 1422, 1422, 953 N.Y.S.2d 788 [4th Dept. 2012]). Although a different verdict would not have been unreasonable (see Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we see no basis to reject County Court's credibility and weight determinations here (see People v. McMillian, 158 A.D.3d 1059, 1061, 71 N.Y.S.3d 262 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018]; People v. Beauharnois, 64 A.D.3d 996, 998-999, 882 N.Y.S.2d 589 [3d Dept. 2009], lv denied 13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965 [2009]).

Defendant also contends that he was denied effective assistance of counsel. “ ‘To prevail on his claim, defendant must demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to pursue colorable claims’ ” (People v. Wills, 224 A.D.3d 1329, 1330, 204 N.Y.S.3d 642 [4th Dept. 2024], lv denied 41 N.Y.3d 1005, 213 N.Y.S.3d 242, 236 N.E.3d 1260 [2024]), and “ ‘[t]here can be no denial of effective assistance of ․ counsel arising from [defense] counsel's failure to make a motion or argument that has little or no chance of success’ ” (id. at 1331, 204 N.Y.S.3d 642). Defendant's mental competency had been previously established by a CPL article 730 examination, and thus defense counsel was not ineffective in failing to request a second examination, which would have had “little or no chance of success” (People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004]); nor was defense counsel ineffective in failing to pursue a defense of mental disease or defect, which was not supported by the record (see People v. Hurlbert, 81 A.D.3d 1430, 1430-1431, 916 N.Y.S.2d 713 [4th Dept. 2011], lv denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979 [2011]). Defendant's argument that defense counsel was ineffective in failing to request an adjournment to allow him time to prepare, or obtain an expert to prepare, a sentencing memorandum lacks merit because defendant has not shown that defense counsel “could have articulated some [additional] basis for leniency” (People v. Adams, 247 A.D.2d 819, 819, 668 N.Y.S.2d 844 [4th Dept. 1998], lv denied 91 N.Y.2d 1004, 676 N.Y.S.2d 132, 698 N.E.2d 961 [1998]) or that “[an expert opinion] was available, that it would have assisted the [court] in its determination [and] that [defendant] was prejudiced by its absence” (People v. Englert, 130 A.D.3d 1532, 1533, 14 N.Y.S.3d 848 [4th Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015], 26 N.Y.3d 1144, 32 N.Y.S.3d 58, 51 N.E.3d 569 [2016] [internal quotation marks omitted]). Defendant's argument that defense counsel should have requested an adjournment to ensure that defendant's participation in the proceedings—including, inter alia, his decision to forgo a plea and his waiver of a jury trial—were knowing and voluntary “ ‘implicates his relationship with his trial attorney and is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10’ ” (People v. Magnano, 158 A.D.2d 979, 979, 551 N.Y.S.2d 131 [4th Dept. 1990], affd 77 N.Y.2d 941, 570 N.Y.S.2d 484, 573 N.E.2d 572 [1991]; see People v. Dallas, 119 A.D.3d 1362, 1364, 989 N.Y.S.2d 206 [4th Dept. 2014], lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014]).

Finally, the sentence is not unduly harsh or severe.