Opinion
No. 575 KA 22-01635
09-27-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. WILLIAM L. HUFNAGLE, DEFENDANT-APPELLANT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. ANTHONY J. DIMARTINO, JR., DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
ANTHONY J. DIMARTINO, JR., DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, NOWAK, AND DELCONTE, JJ.
Appeal from a judgment of the Oswego County Court (Karen M. Brandt Brown, J.), rendered May 3, 2022. The judgment convicted defendant, after a nonjury trial, of sexual abuse in the first degree (two counts) and endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) and one count of endangering the welfare of a child (§ 260.10 [1]). Initially, we conclude that defendant" 'failed to preserve for our review his contention that he did not knowingly, voluntarily and intelligently waive the right to a jury trial inasmuch as he did not challenge the adequacy of his allocution with respect to the waiver'" (People v Evans, 206 A.D.3d 1613, 1614 [4th Dept 2022], lv denied 38 N.Y.3d 1133 [2022]; see People v Barnett, 221 A.D.3d 1421, 1422 [4th Dept 2023], lv denied 41 N.Y.3d 964 [2024]). In any event, defendant's contention lacks merit. The record establishes that defendant" 'was advised of, understood and knowingly waived his right to a jury trial, after discussing it with counsel and signing a written waiver of jury trial in open court'" (Evans, 206 A.D.3d at 1614; see generally People v Smith, 6 N.Y.3d 827, 828 [2006], cert denied 548 U.S. 905 [2006]). Inasmuch as defendant's mental competency was established by a CPL article 730 examination, there is "no reason to doubt his capacity to waive a jury trial" (People v Sanchez, 201 A.D.3d 599, 600 [1st Dept 2022], lv denied 38 N.Y.3d 1009 [2022]; see People v Campos, 93 A.D.3d 581, 582-583 [1st Dept 2012], lv denied 19 N.Y.3d 971 [2012]).
Contrary to defendant's contention, we conclude that the evidence, viewed in the light most favorable to the People (see People v Delamota, 18 N.Y.3d 107, 113 [2011]), is legally sufficient to support the conviction (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). The sworn testimony of the minor victim that defendant inappropriately touched her vagina is legally sufficient to support the conviction of sexual abuse in the first degree (see Penal Law § 130.65 [3]; People v Russell, 50 A.D.3d 1569, 1569 [4th Dept 2008], lv denied 10 N.Y.3d 939 [2008]; see also People v Scerbo, 74 A.D.3d 1730, 1731-1732 [4th Dept 2010], lv denied 15 N.Y.3d 757 [2010]), and "[b]ecause the evidence... [is] legally sufficient with respect to [defendant's] conviction of sexual abuse, it necessarily also [is] legally sufficient with respect to the conviction of endangering the welfare of a child" (Scerbo, 74 A.D.3d at 1732; see generally § 260.10 [1]).
Furthermore, 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 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495). "In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" (People v Kouao, 177 A.D.3d 1335, 1335 [4th Dept 2019], lv denied 34 N.Y.3d 1160 [2020] [internal quotation marks omitted]; see People v McCoy, 100 A.D.3d 1422, 1422 [4th Dept 2012]). Although a different verdict would not have been unreasonable (see Danielson, 9 N.Y.3d at 348), we see no basis to reject County Court's credibility and weight determinations here (see People v McMillian, 158 A.D.3d 1059, 1061 [4th Dept 2018], lv denied 31 N.Y.3d 1119 [2018]; People v Beauharnois, 64 A.D.3d 996, 998-999 [3d Dept 2009], lv denied 13 N.Y.3d 834 [2009]).
Defendant also contends that he was denied effective assistance of counsel." 'To prevail on his claim, defendant must demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to pursue colorable claims'" (People v Wills, 224 A.D.3d 1329, 1330 [4th Dept 2024], lv denied 41 N.Y.3d 1005 [2024]), and" '[t]here can be no denial of effective assistance of ... counsel arising from [defense] counsel's failure to make a motion or argument that has little or no chance of success'" (id. at 1331). Defendant's mental competency had been previously established by a CPL article 730 examination, and thus defense counsel was not ineffective in failing to request a second examination, which would have had "little or no chance of success" (People v Stultz, 2 N.Y.3d 277, 287 [2004], rearg denied 3 N.Y.3d 702 [2004]); nor was defense counsel ineffective in failing to pursue a defense of mental disease or defect, which was not supported by the record (see People v Hurlbert, 81 A.D.3d 1430, 1430-1431 [4th Dept 2011], lv denied 16 N.Y.3d 896 [2011]). Defendant's argument that defense counsel was ineffective in failing to request an adjournment to allow him time to prepare, or obtain an expert to prepare, a sentencing memorandum lacks merit because defendant has not shown that defense counsel "could have articulated some [additional] basis for leniency" (People v Adams, 247 A.D.2d 819, 819 [4th Dept 1998], lv denied 91 N.Y.2d 1004 [1998]) or that "[an expert opinion] was available, that it would have assisted the [court] in its determination [and] that [defendant] was prejudiced by its absence" (People v Englert, 130 A.D.3d 1532, 1533 [4th Dept 2015], lv denied 26 N.Y.3d 967 [2015], 26 N.Y.3d 1144 [2016] [internal quotation marks omitted]). Defendant's argument that defense counsel should have requested an adjournment to ensure that defendant's participation in the proceedings-including, inter alia, his decision to forgo a plea and his waiver of a jury trial-were knowing and voluntary" 'implicates his relationship with his trial attorney and is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10'" (People v Magnano, 158 A.D.2d 979, 979 [4th Dept 1990], affd 77 N.Y.2d 941 [1991]; see People v Dallas, 119 A.D.3d 1362, 1364 [4th Dept 2014], lv denied 24 N.Y.3d 1083 [2014]).
Finally, the sentence is not unduly harsh or severe.