PEOPLE v. WISE (2008)

Defendant appeals from a judgment convicting him, after a jury trial, of four counts of sexual abuse in the first degree (Penal Law § 130.65[3] ), two counts of attempted sodomy in the first degree (§§ 110.00, former 130.50[3] ), and one count each of attempted rape in the first degree (§§ 110.00, 130.35[3] ) and endangering the welfare of a child (§ 260.10 [1] ).   We reject the contention of defendant that reversal is required because the jury may have convicted him of two unindicted instances of sexual abuse and different jurors may have convicted him based on different acts.   Although the testimony of the victim concerned more than four incidents involving defendant that may constitute the crime of sexual abuse in the first degree, County Court's “charge to the jury eliminated any ‘danger that the jury convicted defendant of an unindicted act or that different jurors convicted defendant based on different acts' ” (People v. Gerstner, 270 A.D.2d 837, 838, 706 N.Y.S.2d 542;  see People v. Caballero, 23 A.D.3d 1031, 1032, 803 N.Y.S.2d 849, lv. denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975;  see generally People v. Mathis, 8 A.D.3d 966, 967-968, 778 N.Y.S.2d 613, lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 37, 818 N.E.2d 679).

 Defendant further contends that the evidence is legally insufficient to support the conviction of attempted rape and that the verdict convicting him of that crime is against the weight of the evidence.   In support thereof, he contends that his actions did not constitute attempted rape because he never removed the victim's underwear, and he knew that one of his relatives was likely to return to the bedroom at any time.   We reject defendant's contentions.   The Court of Appeals has written that, “in demarcating punishable attempts from mere preparation to commit a crime, a ‘line has been drawn between those acts which are remote and those which are proximate and near to the consummation’ ” (People v. Acosta, 80 N.Y.2d 665, 670, 593 N.Y.S.2d 978, 609 N.E.2d 518, quoting People v. Rizzo, 246 N.Y. 334, 337, 158 N.E. 888;  see People v. Mahboubian, 74 N.Y.2d 174, 190-191, 544 N.Y.S.2d 769, 543 N.E.2d 34).   To constitute an attempt, “defendant['s] act need not be the final one towards the completion of the offense” (Mahboubian, 74 N.Y.2d at 190, 544 N.Y.S.2d 769, 543 N.E.2d 34 [internal quotation marks omitted] ).   Here, the victim testified that defendant told her that he was not going to let her go until he had sex with her.   The victim also testified that defendant took off his pants, pulled down his underwear, pulled off her pants but not her underwear, pushed her onto a bed and touched her vaginal area beneath her underwear.   Viewing the evidence in the light most favorable to the People, as we must in reviewing defendant's contention with respect to legal sufficiency (see People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839, rearg. denied 73 N.Y.2d 870, 537 N.Y.S.2d 489, 534 N.E.2d 327), we conclude that the evidence is legally sufficient to support the conviction of attempted rape (see People v. Glover, 107 A.D.2d 821, 484 N.Y.S.2d 659, affd. 66 N.Y.2d 931, 498 N.Y.S.2d 796, 489 N.E.2d 765, cert. denied 476 U.S. 1161, 106 S.Ct. 2283, 90 L.Ed.2d 724;  People v. Pereau, 64 N.Y.2d 1055, 1057, 489 N.Y.S.2d 872, 479 N.E.2d 217;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further conclude that the verdict is not against the weight of the evidence with respect to that crime (see People v. Spagnualo, 5 A.D.3d 995, 996-997, 774 N.Y.S.2d 223, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478;  People v. Cobenais, 301 A.D.2d 958, 958-961, 755 N.Y.S.2d 736, lv. denied 99 N.Y.2d 653, 760 N.Y.S.2d 117, 790 N.E.2d 291;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant further contends that defense counsel should have sought dismissal of the count charging him with endangering the welfare of a child because that count was time-barred, and that as a result he was denied his right to effective assistance of counsel.   As the People correctly concede, that count is governed by the two-year statute of limitations (see CPL 30.10 [2] [c] ), and it should have been dismissed as time-barred (see People v. Rogner, 265 A.D.2d 688, 697 N.Y.S.2d 363).   We therefore modify the judgment accordingly.

 We further conclude under the circumstances of this case, however, that defendant was not thereby denied his right to effective assistance of counsel.  “[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations ․, in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel” (People v. Turner, 5 N.Y.3d 476, 481, 806 N.Y.S.2d 154, 840 N.E.2d 123).   Nevertheless, we conclude that defense counsel's single omission did not “so seriously compromise[ ][the] defendant's right to a fair trial [as to] qualify as ineffective representation” (see People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102;  see generally People v. Flores, 84 N.Y.2d 184, 187-189, 615 N.Y.S.2d 662, 639 N.E.2d 19).   Contrary to defendant's contention, the incidents underlying the count of endangering the welfare of a child, although subject to a Ventimiglia hearing, would nevertheless have been admissible as probative of the sexual gratification element of the sexual abuse charges (see generally People v. Ortiz, 16 A.D.3d 831, 833, 791 N.Y.S.2d 709, lv. denied 4 N.Y.3d 889, 798 N.Y.S.2d 734, 831 N.E.2d 979;  People v. Graves, 8 A.D.3d 1045, 778 N.Y.S.2d 364, lv. denied 3 N.Y.3d 674, 784 N.Y.S.2d 13, 817 N.E.2d 831;  People v. Evans, 259 A.D.2d 629, 687 N.Y.S.2d 644, lv. denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510), and we note that the count at issue is now being dismissed as time-barred.   Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Clark, 6 A.D.3d 1066, 1067, 776 N.Y.S.2d 656, lv. denied 3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199;  cf. Turner, 5 N.Y.3d at 478-479, 806 N.Y.S.2d 154, 840 N.E.2d 123).

 We reject the contention of defendant that he did not validly waive his right to be present at sidebar conferences conducted during jury selection and thus was denied his right to be present at those sidebar conferences.   The record establishes that, before the first sidebar conference, the court informed defendant that he had the right to be present, and defendant indicated that he understood that right.   Thereafter, defendant was not present during sidebars.  “Defendant's failure to attend sidebar conferences after having been informed of the right to do so constitutes a waiver of that right” (People v. Yeldon, 251 A.D.2d 1047, 1048, 675 N.Y.S.2d 262, lv. denied 92 N.Y.2d 908, 680 N.Y.S.2d 72, 702 N.E.2d 857;  see People v. McHerrin, 19 A.D.3d 1166, 796 N.Y.S.2d 211, lv. denied 5 N.Y.3d 808, 803 N.Y.S.2d 37, 836 N.E.2d 1160).   Defendant failed to object to the court's ultimate Sandoval ruling and thus failed to preserve for our review his contention that the court did not consider and balance the appropriate Sandoval factors (see People v. Washington, 38 A.D.3d 1339, 832 N.Y.S.2d 334, lv. denied 9 N.Y.3d 870, 840 N.Y.S.2d 900, 872 N.E.2d 1206;  People v. Alston, 27 A.D.3d 1141, 811 N.Y.S.2d 251, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674).   In any event, defendant's contention lacks merit.   The court allowed the People to question defendant with respect to one prior conviction and three immoral or vicious acts, none of which was too remote in time to be pertinent.   Moreover, the nature of the conviction and its underlying facts as well as the three immoral or vicious acts are probative of defendant's credibility and the “willingness ․ [of defendant] to place the advancement of his individual self-interest ahead of principle or of the interests of society” (People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413).   Further, neither the prior conviction nor the other acts suggest that defendant has a propensity to commit the sex crimes at issue herein (see People v. Tirado, 19 A.D.3d 712, 796 N.Y.S.2d 424, lv. denied 5 N.Y.3d 810, 803 N.Y.S.2d 39, 836 N.E.2d 1162).

Defendant failed to preserve for our review his further contention that the duration of the order of protection is beyond that permitted by law (see People v. Nieves, 2 N.Y.3d 310, 315-317, 778 N.Y.S.2d 751, 811 N.E.2d 13).   In any event, because defendant failed to include the order of protection in the stipulated record on appeal, we cannot review that contention (see People v. Taylor, 231 A.D.2d 945, 946, 647 N.Y.S.2d 902, lv. denied 89 N.Y.2d 930, 654 N.Y.S.2d 733, 677 N.E.2d 305;  People v. Restivo, 226 A.D.2d 1106, 642 N.Y.S.2d 143, lv. denied 88 N.Y.2d 883, 645 N.Y.S.2d 458, 668 N.E.2d 429).

Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of endangering the welfare of a child and dismissing count eight of the indictment and as modified the judgment is affirmed.

MEMORANDUM: