People v. Alexander

• Decision Date: 27 September 2013
• Citation: 109 A.D.3d 1083,2013 N.Y. Slip Op. 06100,972 N.Y.S.2d 124
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyree ALEXANDER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 1083

972 N.Y.S.2d 124

2013 N.Y. Slip Op. 06100

The PEOPLE of the State of New York, Respondent,

v.Tyree ALEXANDER, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Sept. 27, 2013.

O'Connell and Aronowitz, Albany (Stephen R. Coffey of Counsel), for Defendant–Appellant.

Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of sexual abuse in the first degree (Penal Law § 130.65[3] ) and endangering the welfare of a child (§ 260.10[1] ). Contrary to defendant's contention, he was not denied his constitutional right to proceed pro se. Defendant sought to proceed pro se because he believed that his assigned counsel did not spend enough time both with him and in researching the case. After County Court ordered defense counsel to spend the afternoon with defendant preparing for trial, defendant did not again seek to proceed pro se. We conclude that defendant's request to proceed pro se was made in the context of a claim expressing his dissatisfaction with his attorney and was not unequivocal ( see People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92;People v. Caswell, 56 A.D.3d 1300, 1301–1302, 867 N.Y.S.2d 638,lv. denied11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442,reconsideration denied12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092). “In any event, ... defendant abandoned his request by subsequently acting in a manner indicating his satisfaction with counsel” ( People v. Jackson, 97 A.D.3d 693, 694, 947 N.Y.S.2d 613,lv. denied20 N.Y.3d 1100, 965 N.Y.S.2d 796, 988 N.E.2d 534;see Gillian, 8 N.Y.3d at 88, 828 N.Y.S.2d 277, 861 N.E.2d 92).

Defendant's contention that the court erred in allowing the seven-year-old victim to give sworn testimony is not preserved for our review ( see People v. Dickens, 48 A.D.3d 1034, 1034–1035, 849 N.Y.S.2d 837,lv. denied10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448). In any event, the court did not abuse its discretion in admitting that testimony inasmuch as the witness demonstrated sufficient intelligence and capacity, and further demonstrated that she understood the nature of an oath, i.e., she “appreciate [d] the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished” (CPL 60.20[2]; see People v. Beckwith, 289 A.D.2d 956, 958, 734 N.Y.S.2d 770,amended on rearg.303 A.D.2d 1054, 759 N.Y.S.2d 923;see generally People v. Nisoff, 36 N.Y.2d 560, 565–566, 369 N.Y.S.2d 686, 330 N.E.2d 638). The court properly determined that the presumption of incompetency was overcome ( see People v. Hetrick, 80 N.Y.2d 344, 349, 590 N.Y.S.2d 183, 604 N.E.2d 732;People v. Morales, 80 N.Y.2d 450, 452–453, 591 N.Y.S.2d 825, 606 N.E.2d 953;People v. Schroo, 87 A.D.3d 1287, 1289, 930 N.Y.S.2d 158,lv. denied19 N.Y.3d 977, 950 N.Y.S.2d 360, 973 N.E.2d 770).

Defendant next contends that the evidence is legally insufficient to establish that he had sexual contact with the victim. Defendant failed to preserve that contention for our review inasmuch as he failed to renew his motion for trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that contention lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Further, 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), we conclude 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).

We reject the contention of defendant that he received ineffective assistance of counsel. Defendant failed to establish the absence of a strategic reason for defense counsel's failure to exercise any challenges during voir dire ( see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Turck, 305 A.D.2d 1072, 1073, 758 N.Y.S.2d 895,lv. denied100 N.Y.2d 566, 763 N.Y.S.2d 824, 795 N.E.2d 50). Defendant also failed to establish the absence of a strategic reason for defense counsel's failure to call any witnesses at the Huntley hearing, or any witnesses other than defendant at trial ( see generally Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584). Inasmuch as the court did not abuse its discretion in permitting the victim to testify, defense counsel's failure to object to the admission of that testimony cannot be considered ineffective assistance of counsel ( see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883,rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671;People v. Crump, 77 A.D.3d 1335, 1336, 909 N.Y.S.2d 252,lv. denied16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198). Contrary to defendant's contention, the record establishes that defense counsel adequately cross-examined the witnesses at trial and presented a cogent...