PEOPLE v. TAYLOR (2008)

Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][a] ) and endangering the welfare of a child (§ 260.10[1] ).   We reject the contention of defendant that he was denied effective assistance of counsel based upon defense counsel's representation of the victim's father, a prosecution witness, in an unrelated matter.   The record establishes that defense counsel first informed defendant of the potential conflict and that County Court thereafter conducted a Gomberg inquiry.   Defendant agreed following that inquiry to defense counsel's continuing representation, and it thus cannot be said that he was denied effective assistance of counsel based on the potential conflict (see People v. Floyd, 45 A.D.3d 1457, 1459-1460, 846 N.Y.S.2d 537, lv. denied 10 N.Y.3d 810, 811, 818, 857 N.Y.S.2d 43, 44, 51, 886 N.E.2d 808, 809, 816;  People v. Walker, 2 A.D.3d 1358, 1359, 769 N.Y.S.2d 422, lv. denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211).   We reject the further contention of defendant that defense counsel was otherwise ineffective in representing him (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).   Contrary to defendant's further contentions, the court's Sandoval ruling does not constitute an abuse of discretion (see People v. Tirado, 19 A.D.3d 712, 713, 796 N.Y.S.2d 424, lv. denied 5 N.Y.3d 810, 803 N.Y.S.2d 39, 836 N.E.2d 1162), and the court did not abuse its discretion in restricting the cross-examination of the victim with respect to prior complaints of sexual abuse inasmuch as “defendant provided no basis for his allegation that the prior complaints were false” (People v. Benn, 213 A.D.2d 489, 623 N.Y.S.2d 634, lv. denied 85 N.Y.2d 969, 629 N.Y.S.2d 729, 653 N.E.2d 625;  see People v. Sprague, 200 A.D.2d 867, 606 N.Y.S.2d 815, lv. denied 83 N.Y.2d 877, 613 N.Y.S.2d 137, 635 N.E.2d 306).   Also contrary to the contention of defendant, the court properly refused to suppress his statement to the police (see People v. Collins, 43 A.D.3d 1338, 1339, 842 N.Y.S.2d 624, lv. denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879).

We agree with defendant, however, that the sentence is unduly harsh and severe.   Thus, as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ), we modify the judgment by reducing the sentence imposed for course of sexual conduct against a child in the first degree to a determinate term of incarceration of 15 years.

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed for course of sexual conduct against a child in the first degree to a determinate term of incarceration of 15 years and as modified the judgment is affirmed.

MEMORANDUM: