Opinion
1177 KA 19-02121
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Nathan J. DUPUIS, Defendant-Appellant.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of two counts each of sexual abuse in the first degree ( Penal Law § 130.65 [3] ) and endangering the welfare of a child (§ 260.10 [1]), and one count of attempted sexual abuse in the first degree ( §§ 110.00, 130.65 [3] ). Viewing the evidence in light of the elements of the crimes 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 [2007] ), we conclude that the verdict 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 [1987] ). Although a different finding would not have been unreasonable (see Danielson , 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), we conclude that, "[b]ased on the weight of the credible evidence, [County C]ourt ... was justified in finding the defendant guilty beyond a reasonable doubt" ( Danielson , 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; see generally People v. Romero , 7 N.Y.3d 633, 642-643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ). " ‘Great deference is to be accorded to the [factfinder]’s resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony’ " ( People v. Gritzke , 292 A.D.2d 805, 805-806, 738 N.Y.S.2d 643 [4th Dept. 2002], lv denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4 [2002] ; see People v. Martin , 122 A.D.3d 1424, 1425, 996 N.Y.S.2d 457 [4th Dept. 2014], lv denied 25 N.Y.3d 951, 7 N.Y.S.3d 281, 30 N.E.3d 172 [2015] ), and we perceive no reason to disturb the court's credibility determinations.
Defendant failed to preserve for our review his contention that the court erred in allowing the People to introduce Molineux evidence (see CPL 470.05 [2] ; see generally People v. Taylor , 2 A.D.3d 1306, 1307, 769 N.Y.S.2d 797 [4th Dept. 2003], lv denied 2 N.Y.3d 746, 778 N.Y.S.2d 472, 810 N.E.2d 925 [2004] ) inasmuch as defense counsel advised the court that the defense did not oppose the People's Molineux application and defendant raised no objection to the police officer testimony that he now challenges on appeal.
Defendant failed to preserve for our review his contention that the court, "in determining the sentence to be imposed, penalized [him] for exercising [his] right to a ... trial" ( People v. Garner , 136 A.D.3d 1374, 1374, 25 N.Y.S.3d 758 [4th Dept. 2016], lv denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ; see People v. Coapman , 90 A.D.3d 1681, 1683-1684, 936 N.Y.S.2d 454 [4th Dept. 2011], lv denied 18 N.Y.3d 956, 944 N.Y.S.2d 484, 967 N.E.2d 709 [2012] ). In any event, that contention is without merit. "The mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting [his] right to trial," and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant's exercise of the right to a trial ( Garner , 136 A.D.3d at 1374, 25 N.Y.S.3d 758 [internal quotation marks omitted]). Moreover, "[g]iven that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea" ( People v. Martinez , 26 N.Y.3d 196, 200, 21 N.Y.S.3d 196, 42 N.E.3d 693 [2015] [internal quotation marks omitted]; see People v. Pope , 141 A.D.3d 1111, 1112, 33 N.Y.S.3d 812 [4th Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] ). Finally, the sentence is not unduly harsh or severe.