Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. David G. COX, Defendant–Appellant.
Jeffrey Wicks, PLLC, Rochester (Charles Steinman of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
Jeffrey Wicks, PLLC, Rochester (Charles Steinman of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him following a nonjury trial of two counts of criminal sexual act in the first degree (Penal Law § 130.50[1] ). We agree with defendant that the third count of the indictment, charging defendant with engaging in anal sexual contact with the complainant by forcible compulsion, was rendered duplicitous by the complainant's testimony (see People v. Levandowski, 8 A.D.3d 898, 899–900, 780 N.Y.S.2d 384 ; People v. Davila, 198 A.D.2d 371, 373, 603 N.Y.S.2d 185 ). The complainant testified that the acts of anal sexual contact occurred "more than once" over the course of a two-hour incident, and, contrary to the People's contention, such acts did not constitute a continuous offense (see People v. Keindl, 68 N.Y.2d 410, 420–421, 509 N.Y.S.2d 790, 502 N.E.2d 577, rearg. denied 69 N.Y.2d 823, 513 N.Y.S.2d 1028, 506 N.E.2d 539 ), but rather were separate and distinct offenses (see
People v. Russell, 116 A.D.3d 1090, 1091, 983 N.Y.S.2d 105 ; see also People v. Garcia, 141 A.D.3d 861, 865, 34 N.Y.S.3d 766, lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 ). We therefore modify the judgment accordingly (see Keindl, 68 N.Y.2d at 423, 509 N.Y.S.2d 790, 502 N.E.2d 577 ).
We reject defendant's contention that Supreme Court erred in refusing to substitute new appointed counsel, inasmuch as defendant's complaints concerning counsel concerned only disagreements over strategy (see People v. Rupert, 136 A.D.3d 1311, 1311, 23 N.Y.S.3d 794, lv. denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 ), or his lack of trust in appointed counsel without a showing of good cause therefor (see People v. Sawyer, 57 N.Y.2d 12, 19, 453 N.Y.S.2d 418, 438 N.E.2d 1133, rearg. dismissed 57 N.Y.2d 776, 454 N.Y.S.2d 1033, 440 N.E.2d 1343, cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024 ). Viewing the evidence in light of the elements of criminal sexual act in the first degree under the second count of the indictment in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict on that count is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The court was entitled to credit the complainant's testimony that defendant forced her to have sexual contact and to reject defendant's testimony that such contact was consensual (see People v. Cooper, 72 A.D.3d 1552, 1552, 900 N.Y.S.2d 232, lv. denied 15 N.Y.3d 803, 908 N.Y.S.2d 163, 934 N.E.2d 897, reconsideration denied 15 N.Y.3d 892, 912 N.Y.S.2d 580, 938 N.E.2d 1015 ). Finally, contrary to defendant's contention, we conclude that the court did not abuse its discretion in refusing to direct production of the complainant's psychiatric records for its in camera review. There was no showing that the complainant's psychiatric history had any bearing on her ability to perceive or recall the incident (see People v. Tirado, 109 A.D.3d 688, 689, 970 N.Y.S.2d 342, lv. denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555, reconsideration denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978, cert. denied ––– U.S. ––––, 135 S.Ct. 183, 190 L.Ed.2d 143 ; People v. Duran, 276 A.D.2d 498, 498, 713 N.Y.S.2d 561 ), nor was there any other basis for concluding that the confidentiality of her psychiatric records was significantly outweighed by the interests of justice (see People v. Felong, 283 A.D.2d 951, 952, 724 N.Y.S.2d 380 ; Duran, 276 A.D.2d at 498, 713 N.Y.S.2d 561 ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of criminal sexual act in the first degree under the third count of the indictment and dismissing that count without prejudice to the People to re-present any appropriate charges under that count of the indictment to another grand jury, and as modified the judgment is affirmed.