Opinion
18-132
11-27-2020
The PEOPLE of the State of New York, Respondent, v. Vladimir DUARTE, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Ann E. Scherzer, J.), rendered July 31, 2017, affirmed.
The verdict convicting defendant of forcible touching (see Penal Law § 130.52[1] ) and sexual abuse in the second degree (see Penal Law § 130.60[2] ) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson , 9 NY3d 342, 348 [2007] ). There is no basis for disturbing the court's credibility determinations, including its evaluation of the 13-year- old victim's testimony. While defendant claims that the victim's testimony was incredible because she initially lied to the police about the precise street location of the forcible touching/sexual abuse suffered at the hands of defendant, a stranger to her, the infant victim explained her reasons for so doing, and the trial court, as the trier of fact, was free to accept or reject the explanation offered (see People v. De Tore , 34 NY2d 199 [1974], cert denied 419 US 1025 [1974] ; People v. Lussier , 205 AD2d 910 [1994], lv denied 83 NY2d 1005 [1994], cert denied 513 US 1078 [1995] ). Furthermore, the victim's trial testimony was corroborated by her classmate and school safety officer, to whom she reported the crime shortly after it occurred, and by video surveillance footage showing defendant and the victim in the same area at the time of the incident, with defendant wearing the distinctive gold-framed glasses described by the victim.
Viewing the record as a whole, we conclude that defendant did not make a clear and unequivocal request to proceed pro se, sufficient to express the "definitive commitment to self-representation" that would trigger the need for a full inquiry by the court ( People v. LaValle , 3 NY3d 88, 106 [2004] ). Rather than being unequivocal, defendant's expression of a desire to represent himself came within the context of his complaints about his counsel (see People v. Gillian , 8 NY3d 85, 88 [2006] ; People v. Payton , 45 NY2d 300, 314 [1978], revd on other grounds 445 US 573 [1980] ; People v. Little , 151 AD3d 531 [2017], lv denied 30 NY3d 951 [2017] ). In any event, defendant abandoned his request by proceeding with the scheduled suppression hearing and subsequent trial without expressing any further desire to represent himself (see People v. Gillian , 8 NY3d at 88 ; People v. Berrian , 154 AD3d 486, 487 [2017], lv denied 30 NY3d 1103 [2018] ; People v. Cornelius , 132 AD3d 495 [2015], lv denied 26 NY3d 1087 [2015] ).
Defendant failed to preserve his present contention that the trial court's actions deprived him of his constitutional right to a fair trial (see People v. Kello , 96 NY2d 740 [2001] ; People v. Charleston , 56 NY2d 886 [1982] ; People v. Williams , 63 Misc 3d 148[A], 2019 NY Slip Op 50721[U][App Term, 1st Dept 2019] ), and we decline to review it in the interest of justice. As an alternative holding, we reject this claim on the merits. The court was "entitled to question [the] witness... to clarify testimony and to facilitate the progress of the trial and to elicit relevant and important facts" ( People v. Williams , 107 AD3d 1516, 1517 [2013], lv denied 21 NY3d 1047 [2013] [internal quotation marks omitted] ), and we conclude that it did not improperly "take[ ] on either the function or appearance of an advocate" when dealing with the 13-year-old victim ( People v. Arnold , 98 NY2d 63, 67 [2002] ; see People v. Yut Wai Tom , 53 NY2d 44, 57—58 [1981] ). In any event, since this was a bench trial, there was no risk of improper influence as a result of the court's questions since there was no jury to influence (see People v. Byrd , 152 AD3d 984, 988 [2017], and the court was presumed to have made "an objective determination based on appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision" ( People v. Kachadourian , 184 AD3d 1021, 1029 [2020] [internal citation omitted]; see People v. Pabon , 28 NY3d 147, 157 [2016] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concurI concur