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The PEOPLE of the State of New York, Respondent, v. Eric J. SIMMONS, Appellant.

Decided: January 21, 2016

Before: PETERS, P.J., McCARTHY, EGAN JR., DEVINE and CLARK, JJ. Robert Gregor, Lake George, for appellant. Karen Heggen, District Attorney, Ballston Spa (Kristin T. Foust of counsel), for respondent.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered August 26, 2014, convicting defendant following a nonjury trial of the crimes of criminal sexual act in the first degree, sexual abuse in the first degree, assault in the second degree, assault in the third degree and criminal obstruction of breathing or blood circulation.

Following an incident wherein he physically and sexually assaulted the victim, defendant was charged in a September 2011 felony complaint with attempted criminal sexual act in the first degree. He fled the state shortly after the incident and, in October 2013, was charged in an indictment with criminal sexual act in the first degree, sexual abuse in the first degree, assault in the second degree, assault in the third degree and criminal obstruction of breathing or blood circulation. Defendant was apprehended in November 2013 and returned to New York to face the pending charges against him. County Court denied that part of defendant's omnibus motion seeking dismissal of the indictment on statutory speedy trial grounds. Defendant then waived his right to a jury trial and, after a bench trial, was found guilty as charged. County Court imposed an aggregate prison sentence of 12 years, to be followed by postrelease supervision of 20 years, and defendant now appeals.

We affirm. Defendant first asserts that County Court erred in denying his application to dismiss the indictment on speedy trial grounds without a hearing (see CPL 30.30, 210.45). Defendant supported that motion with the affidavit of his attorney, who correctly pointed out that over six months had elapsed between the filing of the felony complaint in September 2011 and the declaration by the People that they were ready for trial (see CPL 1.20[1], [17]; 30.30[1][a] ). A defendant seeking a speedy trial dismissal meets his or her initial burden on the motion by making “sworn allegations that there has been unexcused delay in excess of the statutory maximum” (People v. Santos, 68 N.Y.2d 859, 861 [1986] [emphasis added]; see CPL 30.30[4]; People v. Lomax, 50 N.Y.2d 351, 357 [1980] ). Defendant failed “to come forward with ‘sworn allegations supporting all the essential facts,’ “ making nothing beyond a conclusory assertion that the delay was in any way attributable to the People (People v. Blair, 148 A.D.2d 767, 767 [1989], lv denied 74 N.Y.2d 661 [1989], quoting CPL 210.45[5][b]; see People v. Lomax, 50 N.Y.2d at 357). County Court was accordingly free to deny his motion to dismiss without a hearing.

Defendant next contends that the conviction for criminal sexual act in the first degree was not supported by legally sufficient evidence and was against the weight of the evidence. He admittedly failed to renew his motion to dismiss the count in the indictment charging him with criminal sexual act in the first degree at the close of his proof and, as such, his challenge to the legal sufficiency of the evidence is unpreserved (see People v. Diehl, 128 AD3d 1409, 1410 [2015]; People v. Race, 78 AD3d 1217, 1219 [2010], lv denied 16 NY3d 835 [2011] ). That being said, “since defendant also argues that the verdict was against the weight of the evidence, which does not require preservation, ‘we will consider the evidence adduced as to each of the elements of the challenged crime[ ] in the context of that review’ “ (People v. Race, 78 AD3d at 1219, quoting People v. Vargas, 72 AD3d 1114, 1116 [2010], lv denied 15 NY3d 758 [2010] ). Assuming without deciding that an acquittal was a reasonable possibility, that analysis obliges us to independently “weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” in that review, and endeavor to determine “whether [County Court] was justified in finding the defendant guilty beyond a reasonable doubt” (People v. Danielson, 9 NY3d 342, 348 [2007]; see People v. Lane, 7 NY3d 888, 890 [2006] ).

“A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct ․ with another person ․ [b]y forcible compulsion” (Penal Law § 130.50[1]; see People v. Lancaster, 121 AD3d 1301, 1302 [2014], lv denied 24 NY3d 1121 [2015] ). Defendant asserts that he did not succeed in placing his penis inside the victim's mouth and that, as a result, the requisite oral sexual conduct did not occur. The events at issue occurred at the end of an evening wherein defendant had been drinking at a bar where the victim was working. After the establishment closed and his taxi had not yet arrived, the victim offered to give defendant a ride home. When they arrived at the destination, defendant grabbed the victim and pulled her out of the vehicle. He then pinned the victim to the ground and, while she initially told investigators that defendant attempted to force his penis into her mouth, she unequivocally testified at trial that he succeeded in doing so. The victim eventually escaped and went to the home of a friend, where she summoned the authorities. After making a statement to investigators, she went to a hospital and was assessed by a sexual assault nurse examiner, who took swabs from the victim's mouth that ultimately tested positive for the presence of male DNA. While some evidence therefore suggested that the requisite “contact between the mouth and the penis” had not occurred (Penal Law § 130.00[2][a]; see Penal Law § 130.50[1] ), we cannot say, after deferring to County Court's “opportunity to view the witnesses, hear the testimony and observe demeanor,” that the conviction for criminal sexual act in the first degree was against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 495 [1987]; see People v. Desmond, 118 AD3d 1131, 1133 [2014], lv denied 24 NY3d 1002 [2014] ).

Defendant failed to preserve for our review his further argument that counts three and four in the indictment-which charged him with assault in the second degree and assault in the third degree, respectively-were multiplicitous (see People v. Blount, 129 AD3d 1303, 1304 [2015]; People v. Thompson, 34 AD3d 931, 932 [2006], lv denied 7 NY3d 929 [2006] ). Even if that argument had any merit, we would decline to take corrective action in the interest of justice and dismiss the allegedly multiplicitous counts, as the sentences imposed upon them were “effectively subsumed within the” longer concurrent sentence imposed on the more serious charge of criminal sexual act in the first degree (People v. Thompson, 34 AD3d at 932; see People v. Vargas, 72 AD3d 1114, 1120 [2010], lv denied 15 NY3d 758 [2010] ).

Defendant lastly contends that defense counsel was ineffective in various respects. He complains that defense counsel declined a proffered adjournment so that defendant could consider a plea offer, but a failure to obtain more time for him to consider an offer that he had already rejected, without more, was not ineffective assistance. Defendant further points out that defense counsel focused upon the charge of criminal sexual act in the first degree to the exclusion of the other counts, but “an attorney is not required to argue factual innocence at the expense of a stronger defense” (People v. Baldi, 54 N.Y.2d 137, 148 [1981]; accord People v. Plaisted, 2 AD3d 906, 909–910 [2003], lv denied 2 NY3d 744 [2004] ). The evidence presented by the People at trial-which documented the events leading up to the attack, as well as the condition of the victim after it, and revealed that investigators recovered numerous items of her personal property from the crime scene that corroborated her claim of a violent attack-left little doubt that defendant had sexually assaulted the victim. Defense counsel accordingly pursued a valid, if ultimately unsuccessful, trial strategy of assailing the credibility of the victim with her prior statements and arguing that defendant had not committed the top count in the indictment (see People v. Parch, 59 N.Y.2d 844, 845 [1983]; People v. Plaisted, 2 AD3d at 910). Defendant grouses about the performance of defense counsel in other respects, but we are satisfied that, when “viewed in totality and as of the time of the representation,” he received meaningful representation (People v. Baldi, 54 N.Y.2d at 147; see People v. Heidgen, 22 NY3d 259, 278–279 [2013] ).


PETERS, P.J., McCARTHY, EGAN JR. and CLARK, JJ., concur.