Opinion
2013-10-4
The PEOPLE of the State of New York, Respondent, v. Ralph N. WILLIAMS, Defendant–Appellant. (Appeal No. 1.).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, and WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him following a nonjury trial of rape in the first degree (Penal Law § 130.35 [1] ), rape in the second degree (§ 130.30[1] ), and endangering the welfare of a child (§ 260.10[1] ). In appeal No. 2, defendant appeals from the resentence imposed for that conviction.
In appeal No. 1, we conclude that defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the convictions of rape in the first degree and rape in the second degree inasmuch as his motion for a trial order of dismissal was not “ ‘specifically directed’ at the alleged error” asserted on appeal ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). 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, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not 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). “Great deference is to be accorded to the fact[ ]finder's resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony” ( People v. Aikey, 94 A.D.3d 1485, 1486, 943 N.Y.S.2d 702,lv. denied19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206 [internal quotation marks omitted]; see People v. Mosley, 59 A.D.3d 961, 962, 872 N.Y.S.2d 825,lv. denied12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080,reconsideration denied13 N.Y.3d 861, 891 N.Y.S.2d 695, 920 N.E.2d 100). Here, Supreme Court credited the victim's testimony, and we see no basis for disturbing that determination ( see People v. Maxwell, 103 A.D.3d 1239, 1240, 959 N.Y.S.2d 358,lv. denied21 N.Y.3d 945, 968 N.Y.S.2d 7, 990 N.E.2d 141).
We reject defendant's contention that he was denied the right to effective assistance of counsel based on defense counsel's performance during the cross-examination of prosecution witnesses. That contention involves “a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial” ( People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19), and “[s]peculation that a more vigorous cross-examination might have [undermined the credibility of a witness] does not establish ineffectiveness of counsel” ( People v. Bassett, 55 A.D.3d 1434, 1438, 866 N.Y.S.2d 473,lv. denied11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441 [internal quotation marks omitted]; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Contrary to defendant's further contention, the court properly denied his request for the victim's counseling records and the records from other criminal proceedings concerning unrelated crimes committed against the victim. “The court determined following an in camera inspection of the victim's counseling records that they did not relate to the crimes committed by defendant” ( Bassett, 55 A.D.3d at 1437, 866 N.Y.S.2d 473). Additionally, the contentions raised by defendant with respect to his request for records “concerned information that would be used to impeach the victim's general credibility[,]” and thus the request was properly denied ( People v. Reddick, 43 A.D.3d 1334, 1335, 843 N.Y.S.2d 201,lv. denied10 N.Y.3d 815, 857 N.Y.S.2d 48, 886 N.E.2d 813;see generally People v. Gissendanner, 48 N.Y.2d 543, 548, 423 N.Y.S.2d 893, 399 N.E.2d 924). Defendant failed to preserve for our review his contention that the order of protection issued by the court does not comport with CPL 530.13 ( see People v. Nieves, 2 N.Y.3d 310, 315–317, 778 N.Y.S.2d 751, 811 N.E.2d 13), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
With respect to appeal No. 2, we conclude that the sentence imposed at resentencing is not unduly harsh or severe. We note, however, that the certificate of conviction incorrectly reflects that defendant's resentence on the count of rape in the second degree included a seven-year period of postrelease supervision. The certificate of conviction must therefore be amended to reflect that the resentence did not include any postrelease supervision for that count inasmuch as the sentence imposed with respect to that count was for an indeterminate term of incarceration of 3 1/2 to 7 years ( seePenal Law § 70.45[1]; see generally People v. Anderson, 79 A.D.3d 1738, 1739, 917 N.Y.S.2d 451,lv. denied16 N.Y.3d 856, 923 N.Y.S.2d 418, 947 N.E.2d 1197).
It is hereby ORDERED that the appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is otherwise affirmed.