PEOPLE v. LANGEVIN (2018)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of criminal sexual act in the first degree (Penal Law § 130.50[4] ) and sexual abuse in the first degree (§ 130.65[4] ), defendant contends that County Court improperly charged the jury in response to a jury note about a potential deadlock during deliberations.  We reject that contention.  After less than three hours of deliberations, the jury sent a note asking “what happens if we can't agree on both charges.”  In response, the court instructed the jury that the court would “send [the jury] back in and tell you to keep working to come to an agreement because the law requires a unanimous jury verdict and it would relate to both charges.  So I am going to ask you to continue your deliberations and do your best to come to an agreement on each of the charges.  It's got to be unanimous” (emphasis added).  Thus, although the court informed the jury that a verdict had to be unanimous, the court did not instruct the jury that a verdict was required.  In our view, the court's “supplemental instruction viewed as a whole was simply encouraging rather than coercive and was appropriate in light of the fact that the ․ jury had been deliberating for less than four hours” (People v. Ford, 78 N.Y.2d 878, 880, 573 N.Y.S.2d 442, 577 N.E.2d 1034 [1991]; see People v. Thomas, 113 A.D.3d 447, 447, 978 N.Y.S.2d 181 [1st Dept. 2014], lv denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014];  see generally People v. Morgan, 28 N.Y.3d 516, 521–522, 68 N.E.3d 1224 [2016] ).

To the extent that defendant contends that he was denied effective assistance of counsel based on defense counsel's failure to call an expert witness at the Huntley hearing and failure to call character witnesses at trial, that contention involves matters outside the record on appeal and must therefore be raised by way of a motion pursuant to CPL article 440 (see People v. Chander, 140 A.D.3d 1181, 1182–1183, 34 N.Y.S.3d 492 [2d Dept. 2016], lv denied 28 N.Y.3d 1026, 45 N.Y.S.3d 378, 68 N.E.3d 107 [2016];  People v. Washington, 122 A.D.3d 1406, 1406, 997 N.Y.S.2d 194 [4th Dept. 2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015];  People v. Kaminski, 109 A.D.3d 1186, 1186, 971 N.Y.S.2d 721 [4th Dept. 2013], lv. denied 22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976 [2014] ).  We have considered defendant's remaining allegation of ineffective assistance of counsel and, viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).

Finally, we conclude that the sentence is not unduly harsh or severe.