People v. Bubis

• Decision Date: 29 April 2022
• Docket Number: 157,KA 19-01364
• Parties: The PEOPLE of the State of New York, Respondent, v. Gary A. BUBIS, Jr., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1492
167 N.Y.S.3d 283

The PEOPLE of the State of New York, Respondent,
v.
Gary A. BUBIS, Jr., Defendant-Appellant.

157
KA 19-01364

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

Entered: April 29, 2022

KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

204 A.D.3d 1493

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of sexual abuse in the first degree ( Penal Law § 130.65 [4] ), defendant contends that County Court erred in denying that part of his omnibus motion seeking to dismiss the indictment pursuant to CPL 210.35 (5), based on statements allegedly made by a grand juror approximately seven months after defendant was indicted. We reject that contention. "[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury" ( People v. Fisher , 101 A.D.3d 1786, 1786, 956 N.Y.S.2d 391 [4th Dept. 2012], lv denied 20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532 [2013] [internal quotation marks omitted]; see People v. Huston , 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). Defendant failed to establish that such conduct occurred here (cf. People v. Connolly , 63 A.D.3d 1703, 1705, 881 N.Y.S.2d 257 [4th Dept. 2009] ).

We reject defendant's further contention that the court abused its discretion in denying his requests for adjournments, inter alia, to permit his attorney time to prepare for trial and to accommodate an expert witness's schedule. "The court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice" ( People v. Arroyo , 161 A.D.2d 1127, 1127, 555 N.Y.S.2d 499 [4th Dept. 1990], lv denied 76 N.Y.2d 852, 560 N.Y.S.2d 991, 561 N.E.2d 891 [1990] ; see People v. Micolo , 171 A.D.3d 1484, 1485, 99 N.Y.S.3d 538 [4th Dept. 2019], lv denied

167 N.Y.S.3d 286

35 N.Y.3d 1096, 131 N.Y.S.3d 307, 155 N.E.3d 800 [2020] ; People v. Bones , 50 A.D.3d 1527, 1528, 856 N.Y.S.2d 408 [4th Dept. 2008], lv denied 10 N.Y.3d 956, 863 N.Y.S.2d 140, 893 N.E.2d 446 [2008] ), and defendant failed to show such prejudice here. Indeed, we note that defense counsel was well-prepared for trial and that the expert witness testified on defendant's behalf.

Although defendant contends that his conviction is not supported by legally sufficient evidence, his general motion to dismiss at the close of the People's case did not preserve for our review any of his specific challenges on appeal to the sufficiency

204 A.D.3d 1494

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] ). 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 crime 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 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 ).

Defendant contends that he was denied effective assistance of counsel based on a series of alleged errors by defense counsel. We reject that contention. With respect to defendant's assertion that defense counsel was ineffective because he failed to request that the court charge sexual abuse in the third degree as a lesser included offense and to make an adequate motion for a trial order of dismissal, "[i]t is well settled that ‘[a] defendant is not denied effective assistance...