Opinion
710 KA 22-01638
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Jason WEEKS, Defendant-Appellant.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, OGDEN, AND NOWAK, 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 of predatory sexual assault against a child ( Penal Law § 130.96 ), two counts of endangering the welfare of a child (§ 260.10 [1]), and two counts of sexual abuse in the third degree (§ 130.55). Defendant failed to preserve his contention that County Court should have recused itself (see CPL 470.05 [2] ; People v. Strohman , 66 A.D.3d 1334, 1335-1336, 886 N.Y.S.2d 262 [4th Dept. 2009], lv dismissed 13 N.Y.3d 911, 895 N.Y.S.2d 325, 922 N.E.2d 914 [2009] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Contrary to defendant's further contention, the court did not abuse its discretion in denying his motion for a mistrial based on the testimony of one of the victims concerning her recollection of certain lyrics to a song that defendant played during an act of sexual abuse (see generally People v. Urrutia , 181 A.D.3d 1338, 1338, 121 N.Y.S.3d 767 [4th Dept. 2020], lv denied 36 N.Y.3d 1054, 140 N.Y.S.3d 872, 164 N.E.3d 959 [2021] ). Under the circumstances of this case, the victim's testimony regarding the lyrics "shed light on the circumstances under which" defendant played and listened to the music and was properly admitted inasmuch as it was relevant to show his intent, his consciousness of guilt, and the victim's recollection of the incident and the probative value of that testimony was not outweighed by its prejudicial effect ( People v. Wallace , 59 A.D.3d 1069, 1070, 873 N.Y.S.2d 403 [4th Dept. 2009], lv denied 12 N.Y.3d 861, 881 N.Y.S.2d 672, 909 N.E.2d 595 [2009] ; see People v. Green , 92 A.D.3d 953, 956, 939 N.Y.S.2d 520 [2d Dept. 2012], lv denied 19 N.Y.3d 864, 947 N.Y.S.2d 412, 970 N.E.2d 435 [2012] ; see generally People v. James , 176 A.D.3d 1492, 1495, 113 N.Y.S.3d 355 [3d Dept. 2019], lv denied 34 N.Y.3d 1078, 116 N.Y.S.3d 147, 139 N.E.3d 805 [2019] ).
We reject defendant's contention that he received ineffective assistance of counsel. Although defendant contends that defense counsel was ineffective for failing to challenge a prospective juror, defendant " ‘failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge th[e] prospective juror[ ]’ " ( People v. Carpenter , 187 A.D.3d 1556, 1557, 132 N.Y.S.3d 207 [4th Dept. 2020], lv denied 36 N.Y.3d 970, 138 N.Y.S.3d 468, 162 N.E.3d 697 [2020] ; see generally People v. Piasta , 207 A.D.3d 1054, 1055, 170 N.Y.S.3d 776 [4th Dept. 2022], lv denied 38 N.Y.3d 1190, 176 N.Y.S.3d 222, 197 N.E.3d 502 [2022] ). Defendant's contention that defense counsel failed to adequately cross-examine the victim at trial "involves a simple disagreement[ ] with strategies, tactics or the scope of possible cross-examination," and thus does not establish ineffective assistance of counsel ( People v. Powell , 81 A.D.3d 1307, 1307, 916 N.Y.S.2d 385 [4th Dept. 2011], lv denied 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011] [internal quotation marks omitted]). Further, although defendant contends that defense counsel was ineffective for failing to request that the court recuse itself, the record does not establish a basis for recusal (see People v. Holley , 188 A.D.3d 1644, 1646-1647, 136 N.Y.S.3d 602 [4th Dept. 2020], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 775, 171 N.E.3d 251 [2021] ), and defense counsel cannot be deemed ineffective for failing to make a motion that would have had little to no chance of success (see generally People v. Nary , 209 A.D.3d 1275, 1276, 175 N.Y.S.3d 806 [4th Dept. 2022], lv denied 39 N.Y.3d 1079, 184 N.Y.S.3d 278, 204 N.E.3d 1060 [2023] ).
Viewing "the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference" ( People v. Bay , 67 N.Y.2d 787, 788, 501 N.Y.S.2d 19, 492 N.E.2d 127 [1986] ; see People v. Delamota , 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; People v. Brown , 204 A.D.3d 1390, 1392, 166 N.Y.S.3d 808 [4th Dept. 2022], lv denied 39 N.Y.3d 985, 181 N.Y.S.3d 190, 201 N.E.3d 807 [2022] ), we reject defendant's contention that the evidence was legally insufficient to support his conviction. In addition, although "a different verdict would not have been unreasonable inasmuch as this case rests largely on the jury's credibility findings" ( People v. Roman , 107 A.D.3d 1441, 1442, 967 N.Y.S.2d 791 [4th Dept. 2013], lv denied 21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858 [2013] ), 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] ), and affording the requisite deference to the jury's opportunity to view the witnesses (see Roman , 107 A.D.3d at 1442, 967 N.Y.S.2d 791 ), we reject defendant's contention that the verdict is 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] ; 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] ).
Contrary to defendant's further contention, the court did not err in permitting the mother of one of the victims to make a statement at sentencing. Although the mother, under the circumstances of this case, did not qualify as a "victim" pursuant to CPL 380.50 (2) (a), that did not preclude the court from allowing, in its discretion, the mother's statement (see People v. Hemmings , 2 N.Y.3d 1, 6, 776 N.Y.S.2d 201, 808 N.E.2d 336 [2004], rearg denied 2 N.Y.3d 824, 782 N.Y.S.2d 241, 815 N.E.2d 1106 [2004] ; People v. Iovinella , 295 A.D.2d 753, 753, 744 N.Y.S.2d 529 [3d Dept. 2002], lv denied 99 N.Y.2d 536, 752 N.Y.S.2d 597, 782 N.E.2d 575 [2002] ), and we perceive no abuse of discretion here (see generally People v. Minemier , 124 A.D.3d 1408, 1409, 1 N.Y.S.3d 706 [4th Dept. 2015] ). Finally, we conclude that the sentence is not unduly harsh or severe.