Opinion
15146 Ind. No. 3524/14 Case No. 2018-5627
01-27-2022
The PEOPLE of the State of New York, Respondent, v. Elvis SANCHEZ, Defendant-Appellant.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Katrina Jean Myers of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Katrina Jean Myers of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.
Acosta, P.J., Renwick, Moulton, Scarpulla, Higgitt, JJ.
Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered September 17, 2018, as amended November 14, 2018, convicting defendant, after a nonjury trial, of two counts of predatory sexual assault against a child, three counts of sexual abuse in the first degree, three counts of rape in the second degree, seven counts of criminal contempt in the second degree, and one count each of endangering the welfare of a child and attempted assault in the third degree, and sentencing him to an aggregate term of 52 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentences for the predatory sexual assault convictions be served concurrently, resulting in a new aggregate term of 32 years to life, and otherwise affirmed.
Defendant, who signed a valid jury waiver in open court, did not preserve his challenge to the court's inquiry into the voluntariness of his waiver (see People v. Johnson, 51 N.Y.2d 986, 435 N.Y.S.2d 713, 416 N.E.2d 1048 [1980] ), and we decline to review it in the interest of justice. As an alternative holding, we find that defendant made a knowing, intelligent and voluntary waiver after an appropriate inquiry (see People v. Smith, 6 N.Y.3d 827, 828, 817 N.Y.S.2d 575, 850 N.E.2d 622 [2006], cert denied 548 U.S. 905, 126 S.Ct. 2971, 165 L.Ed.2d 953 [2006] ). The transcript contains a statement by the court about the requirement of jury unanimity that was plainly incorrect and contradicted what the court had just said. However, this was either a recording error (see e. g. People v. Valdes, 283 A.D.2d 187, 726 N.Y.S.2d 8 [1st Dept. 2001], lv denied 97 N.Y.2d 688, 738 N.Y.S.2d 305, 764 N.E.2d 409 [2001] ) or a slip of the tongue (see e.g. People v. Suarez, 132 A.D.3d 550, 550, 17 N.Y.S.3d 862 [1st Dept. 2015] ) that went unchallenged by counsel, and it does not warrant reversal where defendant had at least several days to consider waiving a jury trial and discussed the waiver with counsel. Defendant's mental competency had been established by a CPL article 730 examination, and there is no reason to doubt his capacity to waive a jury trial ( People v. Campos, 93 A.D.3d 581, 582–83, 940 N.Y.S.2d 634 [1st Dept. 2012], lv denied 19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764 [2012] ), or the adequacy of the court's inquiry.
Defendant's procedural challenges to his convictions of predatory sexual assault against a child are all unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find his arguments to be unavailing. The court initially convicted defendant of two counts of rape in the first degree as well as the two corresponding counts of predatory sexual assault against a child, but at sentencing, upon defendant's motion and the People's concession, it dismissed the rape counts as multiplicitous (see Penal Law §§ 130.96 ; 130.35[4]). To the extent that, before summations, the court should have specified the counts in the indictment it was considering and designated the first-degree rape counts as lesser included offenses of the predatory sexual assault counts (see CPL 320.20[5] ), any error was harmless. Those counts were all charged in the indictment, so the defense was able to address them in summation (see People v. Cooper , 128 A.D.3d 1433, 1433, 7 N.Y.S.3d 919 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015]), and defendant has not demonstrated any prejudice. Defendant's argument that in convicting defendant of the greater and lesser counts and then dismissing the lesser counts, the court violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) is likewise unpreserved and without merit (see People v. Lawrence, 81 A.D.3d 1326, 1327, 916 N.Y.S.2d 393 [4th Dept. 2011], lv denied 17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] ; see also People v. Adams, 50 A.D.3d 433, 433, 855 N.Y.S.2d 481 [1st Dept. 2008], lv denied 10 N.Y.3d 955, 863 N.Y.S.2d 139, 893 N.E.2d 445 [2008] ).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. We find the sentence excessive to the extent indicated.