Opinion
157 KA 19-01364
04-29-2022
The PEOPLE of the State of New York, Respondent, v. Gary A. BUBIS, Jr., Defendant-Appellant.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.
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 sexual abuse in the first degree ( Penal Law § 130.65 [4] ), defendant contends that County Court erred in denying that part of his omnibus motion seeking to dismiss the indictment pursuant to CPL 210.35 (5), based on statements allegedly made by a grand juror approximately seven months after defendant was indicted. We reject that contention. "[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury" ( People v. Fisher , 101 A.D.3d 1786, 1786, 956 N.Y.S.2d 391 [4th Dept. 2012], lv denied 20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532 [2013] [internal quotation marks omitted]; see People v. Huston , 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). Defendant failed to establish that such conduct occurred here (cf. People v. Connolly , 63 A.D.3d 1703, 1705, 881 N.Y.S.2d 257 [4th Dept. 2009] ).
We reject defendant's further contention that the court abused its discretion in denying his requests for adjournments, inter alia, to permit his attorney time to prepare for trial and to accommodate an expert witness's schedule. "The court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice" ( People v. Arroyo , 161 A.D.2d 1127, 1127, 555 N.Y.S.2d 499 [4th Dept. 1990], lv denied 76 N.Y.2d 852, 560 N.Y.S.2d 991, 561 N.E.2d 891 [1990] ; see People v. Micolo , 171 A.D.3d 1484, 1485, 99 N.Y.S.3d 538 [4th Dept. 2019], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 307, 155 N.E.3d 800 [2020] ; People v. Bones , 50 A.D.3d 1527, 1528, 856 N.Y.S.2d 408 [4th Dept. 2008], lv denied 10 N.Y.3d 956, 863 N.Y.S.2d 140, 893 N.E.2d 446 [2008] ), and defendant failed to show such prejudice here. Indeed, we note that defense counsel was well-prepared for trial and that the expert witness testified on defendant's behalf.
Although defendant contends that his conviction is not supported by legally sufficient evidence, his general motion to dismiss at the close of the People's case did not preserve for our review any of his specific challenges on appeal to the sufficiency of the evidence (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In addition, he failed to renew that motion after presenting proof (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence 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] ). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (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 ).
Defendant contends that he was denied effective assistance of counsel based on a series of alleged errors by defense counsel. We reject that contention. With respect to defendant's assertion that defense counsel was ineffective because he failed to request that the court charge sexual abuse in the third degree as a lesser included offense and to make an adequate motion for a trial order of dismissal, "[i]t is well settled that ‘[a] defendant is not denied effective assistance of trial counsel [where defense] counsel does not make ... a[n] argument that has little or no chance of success’ " ( People v. March , 89 A.D.3d 1496, 1497, 933 N.Y.S.2d 477 [4th Dept. 2011], lv denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967 [2012], quoting 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] ). Here, viewing the evidence in the light most favorable to defendant (see People v. Martin , 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 [1983] ), we conclude that there is no reasonable view thereof to support a finding that defendant committed the lesser offense but not the greater (see generally People v. Glover , 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ). Similarly, inasmuch as the evidence is legally sufficient to support the conviction, defense counsel's failure to preserve the legal sufficiency challenges raised on appeal does not constitute ineffective assistance because those challenges would not have been meritorious (see People v. Jackson , 108 A.D.3d 1079, 1080, 968 N.Y.S.2d 789 [4th Dept. 2013], lv denied 22 N.Y.3d 997, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] ). With respect to defendant's remaining allegations of ineffective assistance of counsel, we conclude that "the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" ( People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Defendant further contends that he was deprived of a fair trial by allegedly improper comments made by the prosecutor during summation. Defendant's contention is without merit. "Reversal based on prosecutorial misconduct is mandated only when the conduct [complained of] has caused such substantial prejudice to the defendant that he has been denied due process of law" ( People v. Kerce , 140 A.D.3d 1659, 1660, 32 N.Y.S.3d 780 [4th Dept. 2016], lv denied 28 N.Y.3d 1028, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] [internal quotation marks omitted]). Here, we conclude that "[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial" ( id. ). In addition, the court properly sustained defense counsel's objection to the prosecutor's statements and gave curative instructions, which the jury is presumed to have followed (see People v. Flowers , 151 A.D.3d 1843, 1843-1844, 57 N.Y.S.3d 598 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ). Thus, any prejudice was alleviated (see id. ).
We further conclude that defendant failed to "establish that he was denied a fair trial by alleged cumulative errors of defense counsel, the prosecutor and the court" ( People v. Williams , 273 A.D.2d 824, 826, 710 N.Y.S.2d 214 [4th Dept. 2000], lv denied 95 N.Y.2d 893, 715 N.Y.S.2d 386, 738 N.E.2d 790 [2000] ; see People v. West , 118 A.D.3d 1450, 1452, 988 N.Y.S.2d 792 [4th Dept. 2014], lv denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] ).
Contrary to defendant's contention, the sentence is not unduly harsh or severe. Finally, as defendant contends and the People correctly concede, the presentence report (PSR) has not been redacted as the court ordered during sentencing. Therefore, all copies of the PSR must be redacted in accordance with those directives (see People v. Howard , 124 A.D.3d 1350, 1351, 998 N.Y.S.2d 755 [4th Dept. 2015] ; see also People v. Washington , 170 A.D.3d 1608, 1610, 95 N.Y.S.3d 707 [4th Dept. 2019], lv denied 33 N.Y.3d 1036, 102 N.Y.S.3d 496, 126 N.E.3d 146 [2019] ).