Opinion
281 KA 18-00042
07-28-2023
The PEOPLE of the State of New York, Respondent, v. William WATTS, Defendant-Appellant.
HUG LAW, PLLC, ALBANY (MATTHEW C. HUG OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
HUG LAW, PLLC, ALBANY (MATTHEW C. HUG OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, 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 trial of promoting prostitution in the third degree ( Penal Law § 230.25 [2] ), three counts of rape in the third degree (§ 130.25 [2]), two counts of criminal sexual act in the third degree (§ 130.40 [2]), and two counts of endangering the welfare of a child (§ 260.10 [1]) arising from allegations that defendant promoted the prostitution of the victim, who was only 16 years old at the time, and that defendant had oral and vaginal sex with her on three separate occasions.
Defendant contends that County Court lacked jurisdiction over counts 1 and 7 of the indictment. Defendant's contention is actually an assertion that Onondaga County was not the proper venue for those counts because the alleged conduct took place in a different county. "Venue, as distinguished from territorial jurisdiction, refers to the proper county or place of trial, not to the power of the court to hear and determine the case ... Thus—unlike territorial jurisdiction which goes to the very essence of the State's power to prosecute and which may never be waived—questions relating only to the proper place for the trial are waivable" ( People v. McLaughlin , 80 N.Y.2d 466, 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357 [1992] ). By failing to timely raise the issue, defendant waived any contention that venue was improper (see People v. Cornell , 17 A.D.3d 1010, 1011, 794 N.Y.S.2d 226 [4th Dept. 2005], lv denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157 [2005] ).
We reject defendant's contention that he was deprived of a fair trial by the court's Molineux ruling, which permitted the People to elicit testimony from the victim's 15-year-old friend that she was present when the victim met defendant in the parking lot prior to her trip to New York City and that defendant had asked the friend if she wanted to engage in prostitution that same weekend. The contested evidence was relevant to show a common scheme or plan and to establish that defendant knew that he was promoting prostitution when he provided money and drugs for the victim's trip to New York City with his associate and told the victim to do everything that his associate told her to do (see People v. Brown , 74 A.D.3d 1748, 1749, 902 N.Y.S.2d 276 [4th Dept. 2010], lv denied 15 N.Y.3d 802, 908 N.Y.S.2d 162, 934 N.E.2d 896 [2010] ; see generally People v. Cass , 18 N.Y.3d 553, 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ; People v. Fiore , 34 N.Y.2d 81, 84-85, 356 N.Y.S.2d 38, 312 N.E.2d 174 [1974] ). The challenged Molineux evidence was highly probative and the probative value of that evidence was not outweighed by its potential for prejudice (see People v. Sin , 217 A.D.3d 1439, 190 N.Y.S.3d 777, 2023 N.Y. Slip Op. 03166, *1 [4th Dept. 2023] ; People v. Molyneaux , 49 A.D.3d 1220, 1221, 853 N.Y.S.2d 774 [4th Dept. 2008], lv denied 10 N.Y.3d 937, 862 N.Y.S.2d 344, 892 N.E.2d 410 [2008]). Moreover, any possible prejudice to defendant was mitigated by the court's limiting instruction (see Sin , 217 A.D.3d 1439, 190 N.Y.S.3d 777, 2023 N.Y. Slip Op. 03166, *1 ).
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 reject defendant's contention that the evidence is legally insufficient to support his conviction of promoting prostitution in the third degree and endangering the welfare of a child (see generally 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] ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "The statutory definition of the term ‘advances prostitution’ ... encompasses [a] defendant's conduct in engaging in conduct ‘designed to institute, aid or facilitate an act or enterprise of prostitution’ " ( People v. Simone-Taylor , 148 A.D.2d 933, 934, 539 N.Y.S.2d 171 [4th Dept. 1989], lv denied 74 N.Y.2d 669, 543 N.Y.S.2d 412, 541 N.E.2d 441 [1989] ; see Penal Law §§ 230.15 [1] ; 230.25 [2]). Here, the People presented evidence that defendant provided money and drugs to his associate for the trip to New York City where the victim was prostituted out to multiple men over a period of days. In addition, the victim testified that defendant had a conversation with her about "selling" herself. That evidence was also sufficient to support defendant's conviction of endangering the welfare of a child (see § 260.10 [1]).
Further, although "a different verdict would not have been unreasonable inasmuch as this case rests largely on the jury's credibility findings with respect to the testimony of the victim" ( People v. Zeitz , 148 A.D.3d 1636, 1637, 52 N.Y.S.3d 185 [4th Dept. 2017], lv denied 29 N.Y.3d 1089, 64 N.Y.S.3d 179, 86 N.E.3d 266 [2017] [internal quotation marks omitted]) we nevertheless conclude, after 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] ), that the verdict is not 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 ). Contrary to defendant's contention, the victim's testimony "was not incredible as a matter of law ..., and the conflicting testimony raised issues of credibility for the jury to resolve" ( People v. Reid , 281 A.D.2d 986, 986, 722 N.Y.S.2d 848 [4th Dept. 2001], lv denied 96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666 [2001] ; see People v. Johnson , 56 A.D.3d 1172, 1173, 868 N.Y.S.2d 433 [4th Dept. 2008], lv denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445 [2009] ; People v. Baker , 30 A.D.3d 1102, 1102-1103, 817 N.Y.S.2d 793 [4th Dept. 2006], lv denied 7 N.Y.3d 846, 823 N.Y.S.2d 775, 857 N.E.2d 70 [2006] ). Moreover, "no corroboration of the victim's testimony was required inasmuch as the victim was competent to testify under oath" ( Zeitz , 148 A.D.3d at 1637, 52 N.Y.S.3d 185 ). Nevertheless, "several aspects of the victim's testimony were corroborated by other witnesses," as well as photographs, surveillance footage, and text messages ( id. [internal quotation marks omitted]). Contrary to defendant's further contention, "[a] circumstantial evidence charge is not required where, as here, both direct and circumstantial evidence is presented to prove defendant's guilt" ( People v. McHenry , 233 A.D.2d 866, 866, 649 N.Y.S.2d 755 [4th Dept. 1996] ; see People v. Hardy , 26 N.Y.3d 245, 249, 22 N.Y.S.3d 377, 43 N.E.3d 734 [2015] ; People v. Chelley , 121 A.D.3d 1505, 1505-1506, 993 N.Y.S.2d 597 [4th Dept. 2014], lv denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015], reconsideration denied 25 N.Y.3d 1070, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ).
Defendant's contention that he was deprived of a fair trial due to prosecutorial misconduct "is unpreserved for our review inasmuch as defendant did not object to any of the alleged instances of misconduct" ( People v. Pendergraph , 150 A.D.3d 1703, 1703, 54 N.Y.S.3d 257 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017] ; see CPL 470.05 [2] ), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
We reject defendant's contention that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, "it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] [internal quotation marks omitted]). Contrary to defendant's assertion, defense counsel was not ineffective in failing to request a circumstantial evidence charge inasmuch as such a charge, as previously discussed, was not warranted (see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Griffin , 203 A.D.3d 1608, 1611, 164 N.Y.S.3d 345 [4th Dept. 2022], lv denied 38 N.Y.3d 1008, 168 N.Y.S.3d 365, 188 N.E.3d 557 [2022] ). Nor was defense counsel ineffective in his cross-examination of the People's witnesses. Although defendant notes that defense counsel's questioning of the victim elicited a single damaging statement, it is clear when considering defense counsel's cross-examination of the victim and the other witnesses, in totality, that counsel pursued an effective strategy of cross-examination by raising inconsistencies in the witnesses’ testimony and attempting to cast doubt on their veracity (see People v. Cortez , 181 A.D.3d 820, 822, 122 N.Y.S.3d 115 [2d Dept. 2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 404, 152 N.E.3d 1205 [2020] ; see generally People v. Graves , 136 A.D.3d 1347, 1351, 25 N.Y.S.3d 477 [4th Dept. 2016], lv denied 27 N.Y.3d 1069, 38 N.Y.S.3d 840, 60 N.E.3d 1206 [2016] ; People v. Miller , 45 A.D.3d 1190, 1190, 846 N.Y.S.2d 692 [3d Dept. 2007] ). With respect to defendant's remaining allegations of ineffective assistance of counsel, we conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that defendant received meaningful representation (see Benevento , 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Defendant failed to preserve for our review his contention that he was penalized for exercising his right to a trial by the imposition of a sentence that is admittedly greater than the sentence offered during the plea negotiation process (see People v. Becraft , 140 A.D.3d 1706, 1706, 34 N.Y.S.3d 301 [4th Dept. 2016], lv denied 29 N.Y.3d 946, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] ; 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] ). Finally, the sentence is not unduly harsh or severe.