People v. Kirk

• Decision Date: 08 June 2012
• Citation: 2012 N.Y. Slip Op. 04461,945 N.Y.S.2d 818,96 A.D.3d 1354
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard G. KIRK, Sr., Defendant–Appellant.

96 A.D.3d 1354

945 N.Y.S.2d 818

2012 N.Y. Slip Op. 04461

The PEOPLE of the State of New York, Respondent,

v.Richard G. KIRK, Sr., Defendant–Appellant.

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

June 8, 2012.

Sugarman Law Firm, LLP, Syracuse (Paul V. Mullin of Counsel), for Defendant–Appellant.

Richard G. Kirk, Sr., Defendant–Appellant Pro Se.

Gregory S. Oakes, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of 4 counts of criminal sexual act in the first degree (Penal Law § 130.50[3], [4] ), 11 counts of sexual abuse in the first degree (§ 130.65[3] ), 4 counts of sexual abuse in the second degree (§ 130.60[2] ), and 6 counts of endangering the welfare of a child (§ 260.10 [1] ). 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 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). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury ..., and the testimony of the [witnesses] with respect to the [disclosure of the sexual abuse] was not so inconsistent or unbelievable as to render it incredible as a matter of law” ( People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829,lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ).

We reject defendant's further contention that County Court erred in permitting testimony concerning child sexual abuse accommodation syndrome (CSAAS) inasmuch as “[t]he expert witness who testified with respect to CSAAS provided only a general explanation of the possible behaviors demonstrated by a victim of child sexual abuse, and [she] did not impermissibly offer an opinion on the issue whether defendant had committed the sex crimes charged in the indictment” ( People v. Wallace, 60 A.D.3d 1268, 1270, 875 N.Y.S.2d 353,lv. denied12 N.Y.3d 922, 884 N.Y.S.2d 703, 912 N.E.2d 1084;see People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084). Contrary to defendant's contention, we conclude that the testimony of his accomplice, who was his girlfriend and the mother of the victims, was sufficiently corroborated by other evidence tending to connect defendant to the commission of the crimes ( see generally People v. Reome, 15 N.Y.3d 188, 191–192, 906 N.Y.S.2d 788, 933 N.E.2d 186).

Defendant also contends that his original defense counsel was ineffective in failing to seek dismissal of counts 11–14 and 35–36 of the indictment, charging him with endangering the welfare of a child, as well as counts 25–28 of the indictment, charging him with sexual abuse in the second degree, because those counts were time-barred. Addressing first counts 25–28, we conclude that defendant's contention is academic to the extent that it is premised upon the failure of original defense counsel to seek dismissal of counts 25 and 28 inasmuch as those counts were dismissed during trial. To the extent that defendant's contention is premised upon the failure of original defense counsel to seek dismissal of counts 26 and 27, we conclude that it involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440 ( see People v. Peters, 90 A.D.3d 1507, 1508, 934 N.Y.S.2d 734;see alsoCPL 30.10[2][c], [3][f] ).

Addressing next counts 11–14 and 35–36, we note that the People do not dispute that those counts are governed by a two-year statute of limitations ( seeCPL 30.10[2][c] ) and should have been dismissed as time-barred. We therefore modify the judgment accordingly. Under the circumstances of this case, however, we further conclude that defendant was not thereby deprived of effective assistance of counsel ( see People v. Wise, 49 A.D.3d 1198, 1200, 854 N.Y.S.2d 262,lv. denied10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413,10 N.Y.3d 966, 863 N.Y.S.2d 150, 893 N.E.2d 456). To the extent that the contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel is based on matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440 ( see e.g. Peters, 90 A.D.3d at 1508, 934 N.Y.S.2d 734;People v. McKnight, 55 A.D.3d 1315, 1317, 864 N.Y.S.2d 224,lv. denied11 N.Y.3d 927, 874 N.Y.S.2d 13, 902 N.E.2d 447), and we conclude on the record before us that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We also conclude that there is no merit to the contention of defendant in his main and pro se supplemental briefs that his indelible right to counsel had attached before he made statements to a police investigator. “The indelible right to counsel attaches in two situations: ‘upon the commencement of formal proceedings, whether or not the defendant has actually retained or requested a lawyer ...[, and] where an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter’ ” ( People v. Foster, 72 A.D.3d 1652, 1653, 900 N.Y.S.2d 219,lv. dismissed15 N.Y.3d 750, 906 N.Y.S.2d 822, 933 N.E.2d 221, quoting People v. West, 81 N.Y.2d 370, 373–374, 599 N.Y.S.2d 484, 615 N.E.2d 968;see People v. Lopez, 16 N.Y.3d 375, 380, 923 N.Y.S.2d 377, 947 N.E.2d 1155). Contrary to defendant's contention, the indelible right to counsel did not attach by virtue of an attorney-client relationship defendant had in a Family Court proceeding at that time. “[W]hile an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of [defense] counsel ..., a relationship formed in a civil matter is not entitled to the same deference” ( People v. Lewie, 17 N.Y.3d 348, 361, 929 N.Y.S.2d 522, 953 N.E.2d 760;see Foster, 72 A.D.3d at 1653–1654, 900 N.Y.S.2d 219). “We further conclude that the determination of the court to credit the testimony of the police officers that defendant did not invoke his right to counsel before signing the [written statements in question] is entitled to deference ..., and we see no basis to disturb that determination” ( People v. Alexander, 51 A.D.3d 1380, 1382, 857 N.Y.S.2d 418,lv. denied11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656;see generally People v. Prochilo, 41 N.Y.2d 759, 761–762, 395 N.Y.S.2d 635, 363 N.E.2d 1380).

We reject the further contention of defendant in his main brief that his written statements to the police were involuntary and that the court therefore erred in refusing to suppress them. “ ‘The voluntariness of a confession is to be determined by examining the totality of the circumstances surrounding the confession’ ” ( People v. Camacho, 70 A.D.3d 1393, 1394, 894 N.Y.S.2d 680,lv. denied14 N.Y.3d 886, 887, 903 N.Y.S.2d 774, 776, 929 N.E.2d 1009, 1011;see also People v. Kithcart, 85 A.D.3d 1558, 1559, 925 N.Y.S.2d 280,lv. denied17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98) and, here, the record of the suppression hearing supports the court's determination that the statements at issue were not rendered involuntary by reason of any alleged coercion by the police ( see People v. Peay, 77 A.D.3d 1309, 1310, 908 N.Y.S.2d 316,lv. denied15 N.Y.3d 955, 917 N.Y.S.2d 114, 942 N.E.2d 325;see generally Prochilo, 41 N.Y.2d at 761–762, 395 N.Y.S.2d 635, 363 N.E.2d 1380).

Defendant's remaining contentions are raised in his pro se supplemental brief. Although defendant's contention that the indictment was duplicitous on its face is not preserved for our review ( see People v. Becoats, 17 N.Y.3d 643, 650–651, 934 N.Y.S.2d 737, 958 N.E.2d 865), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice ( see People v. Bracewell, 34 A.D.3d 1197, 1198, 827 N.Y.S.2d 793). Counts 2–7, 19–22, 24 and 26–27 of the indictment charged defendant with various crimes and alleged that defendant committed one act “and/or” a second act in furtherance of a single charge. We reject defendant's contention that those counts are duplicitous based on the language “and/or” ( see People v. McGuire, 152 A.D.2d 945, 945, 543 N.Y.S.2d 822,lv. denied74 N.Y.2d 849, 546 N.Y.S.2d 1014, 546 N.E.2d 197). We conclude, however, that counts 2–7, 19–20, 22, 24 and 26–27 “were rendered duplicitous by the trial evidence tending to establish the commission of [multiple] criminal acts during the time period [s] specified [with respect to those counts]” ( People v. Bennett, 52 A.D.3d 1185, 1186, 859 N.Y.S.2d 836,lv. denied11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657;see generally People v. Keindl, 68 N.Y.2d 410, 417–418, 509 N.Y.S.2d 790, 502 N.E.2d 577,rearg. denied69 N.Y.2d 823, 513 N.Y.S.2d 1028, 506 N.E.2d 539). We therefore further modify the judgment by reversing those parts convicting defendant of criminal sexual act in the first degree under counts 2–4, sexual abuse in the first degree under counts 5–6, 19–20, 22 and 24 and sexual abuse in the second degree under counts 7 and 26–27 of the indictment and dismissing those counts without prejudice to the People to re-present any appropriate charges under those counts of the indictment to another grand jury ( see Bennett, 52 A.D.3d at 1186, 859 N.Y.S.2d 836;Bracewell, 34 A.D.3d at 1198–1199, 827 N.Y.S.2d 793).

To the extent that defendant preserved for our review his further contention that the indictment gave unreasonably excessive time frames for the alleged offenses ( see generally People v. Soto, 44 N.Y.2d 683, 684, 405 N.Y.S.2d 434, 376 N.E.2d 907), we conclude that it lacks merit. In view of the young ages of the victims and what...