People v. Sparman

• Decision Date: 28 May 1993
• Citation: 599 N.Y.S.2d 202,193 A.D.2d 1076
• Parties: PEOPLE of the State of New York, Respondent, v. Alfred SPARMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 202

599 N.Y.S.2d 202

193 A.D.2d 1076

PEOPLE of the State of New York, Respondent, v. Alfred SPARMAN, Appellant.

Supreme Court, Appellate Division Fourth Department.

May 28, 1993.

Lynne Stewart, New York City, for appellant.

J. Scott Porter, Sp. Prosecutor, Syracuse, for respondent.

Before DENMAN, P.J., and PINE, BALIO, BOOMER and DAVIS, JJ.

MEMORANDUM:

There is no merit to defendant's contention that the trial court erred in refusing defendant's request that attempted sexual misconduct (Penal Law §§ 110.00, 130.20[2] be charged as a lesser included offense of attempted sodomy in the first degree in violation of Penal Law §§ 110.00 and 130.50(1). Because the elements of the two offenses are identical, there is no "reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater" (CPL 300.50[1]; see, People v. Blackwell, 177 A.D.2d 952, 953, 578 N.Y.S.2d 309, lv. denied 79 N.Y.2d 853, 580 N.Y.S.2d 725, 588 N.E.2d 760; People v. Toledo, 177 A.D.2d 988, 578 N.Y.S.2d 448, lv. denied 80 N.Y.2d 839, 587 N.Y.S.2d 923, 600 N.E.2d 650).

Likewise without merit are defendant's contentions that he was denied a fair trial by juror misconduct and that he was denied the effective assistance of counsel. During deliberations, a juror recalled, for the first time, that his ex-wife had been the victim of an attempted rape some 40 years before. That information was communicated to the court. After the jury returned its verdict, the trial judge questioned whether that juror's revelation had any effect upon the juror's decision- making ability and whether it affected in any way the ability of the remaining jurors to reach a verdict. Each of the jurors responded negatively. Under the circumstances, the trial court properly refused to conduct a more detailed hearing into the substance of the jury's deliberations (see, People v. Brown, 48 N.Y.2d 388, 392, 423 N.Y.S.2d 461, 399 N.E.2d 51; People v. Morales, 121 A.D.2d 240, 242, 503 N.Y.S.2d 374). Also, trial counsel's representation of defendant, viewed in its entirety, was meaningful (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Defendant made no request that sexual abuse in the third degree be charged as a lesser included offense of sexual abuse in the first degree (Penal Law § 130.65[1]. Thus, that issue was not preserved (see, CPL 470.05[2]; People v. Buckley, 75 N.Y.2d 843, 846, 552 N.Y.S.2d 912, 552...