Opinion
720 KA 21-01413
11-10-2022
The PEOPLE of the State of New York, Respondent, v. David J. SMITH, Defendant-Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, 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 jury verdict of one count each of course of sexual conduct against a child in the first degree ( Penal Law § 130.75 [1] [b] ) and rape in the second degree (§ 130.30 [1]), and two counts of endangering the welfare of a child (§ 260.10 [1]). Contrary to defendant's contention, we conclude that he received effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a " ‘defendant must demonstrate that his [or her] attorney failed to provide meaningful representation’ " ( People v. Williams , 206 A.D.3d 1625, 1626, 168 N.Y.S.3d 613 [4th Dept. 2022], lv denied 38 N.Y.3d 1154, 174 N.Y.S.3d 52, 194 N.E.3d 759 [2022], quoting People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). The defendant "bears the ultimate burden of showing ... the absence of strategic or other legitimate explanations for counsel's challenged actions" ( People v. Lopez-Mendoza , 33 N.Y.3d 565, 572, 106 N.Y.S.3d 266, 130 N.E.3d 862 [2019] [internal quotation marks omitted]; see People v. Bradford , 204 A.D.3d 1483, 1485, 167 N.Y.S.3d 287 [4th Dept. 2022] ). Here, defendant failed to make such a showing (see generally Bradford , 204 A.D.3d at 1485, 167 N.Y.S.3d 287 ). Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of representation (see People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ), we conclude that defense counsel provided competent and meaningful representation, which included a successful pretrial motion to dismiss count one of the indictment as duplicitous and the presentation of a cogent defense (see People v. Singleton , 203 A.D.3d 1671, 1672-1673, 164 N.Y.S.3d 757 [4th Dept. 2022], lv denied 38 N.Y.3d 1074, 171 N.Y.S.3d 446, 191 N.E.3d 398 [2022] ).
Although defendant contends that his conviction is not supported by legally sufficient evidence, his motion to dismiss at the close of the People's case did not preserve for our review his specific challenge on appeal to the sufficiency of the evidence (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In addition, he failed to renew that motion after presenting proof (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ; People v. Bubis , 204 A.D.3d 1492, 1494, 167 N.Y.S.3d 283 [4th Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 43, 194 N.E.3d 750 [2022] ; People v. Douglas , 85 A.D.3d 1585, 1586, 924 N.Y.S.2d 715 [4th Dept. 2011] ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We further reject defendant's contention that his sentence is unduly harsh and severe. Finally, we have reviewed defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.