People v. Vickers, 70 KA 14-01695.

• Decision Date: 24 March 2017
• Docket Number: 70 KA 14-01695.
• Citation: 50 N.Y.S.3d 668,148 A.D.3d 1535
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Sean VICKERS, also known as Sean M. Vickers, also known as Sean Michael Vickers, Defendant–Appellant. (Appeal No. 1.).

148 A.D.3d 1535

50 N.Y.S.3d 668

The PEOPLE of the State of New York, Respondent,

v.Sean VICKERS, also known as Sean M. Vickers, also known as Sean Michael Vickers, Defendant–Appellant. (Appeal No. 1.).

70 KA 14-01695.

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

March 24, 2017.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Benjamin L. Nelson of Counsel), for Defendant–Appellant.

Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of Counsel), for Respondent.

PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him following a jury trial of sodomy in the first degree (Penal Law former § 130.50[4] ). In appeal No. 2, defendant appeals from a judgment convicting him following the same jury trial of sodomy in the first degree (former § 130.50[4] ), two counts of criminal sexual act in the first degree (§ 130.50 [4 ] ), and sexual abuse in the first degree (§ 130.65[3] ).

The convictions arise from two indictments based upon allegations that defendant sexually assaulted or abused five underage victims. The first indictment, which is the subject of appeal No. 1, charged defendant with course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1 ] [b] ). The second indictment, which is the subject of appeal No. 2, charged defendant with, inter alia, course of sexual conduct against a child in the first degree (§ 130.75[1][b] ) (count one); two counts of predatory sexual assault against a child on the ground that he committed a course of sexual conduct against a child in the first degree (§§ 130.75[1][b] ; 130.96) (counts two and six); and sexual abuse in the first degree (§ 130.65 [3] ) (count 10).

Before trial, County Court granted the People's motion to consolidate the indictments and denied defendant's cross motion to sever count one from the second indictment. After the close of proof, the court granted the People's motion to amend the indictments so that the two counts of course of sexual conduct against a child in the first degree, as charged in the first indictment and count one of the second indictment, were replaced with two counts of sodomy in the first degree (Penal Law former § 130.50[4] ), and the two counts of predatory sexual assault against a child, as charged in counts two and six of the second indictment, were replaced with two counts of criminal sexual act in the first degree (§ 130.50[4] ).

Viewing the evidence in light of the elements of the crimes in appeal Nos. 1 and 2 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 People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

We reject defendant's contention that the court erred in granting the People's motion to consolidate the indictments. The offenses charged therein were the "same or similar in law" (CPL 200.20[2][c] ), and defendant failed to demonstrate prejudice resulting from the consolidation (see People v. Davey, 134 A.D.3d 1448, 1451, 22 N.Y.S.3d 713 ; People v. Molyneaux, 49 A.D.3d 1220, 1221, 853 N.Y.S.2d 774, lv. denied 10 N.Y.3d 937, 862 N.Y.S.2d 344, 892 N.E.2d 410 ). Contrary to defendant's further contention, the court did not abuse its discretion in denying his motion to sever count one from the second indictment, inasmuch as defendant failed to demonstrate the requisite good cause for a discretionary severance under CPL 200.20(3) (see People v. Keegan, 133 A.D.3d 1313, 1314, 20 N.Y.S.3d 796, lv. denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 ; see generally People v. McKinnon, 15 A.D.3d 842, 843, 788 N.Y.S.2d 766, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979 ).

Defendant contends that he was denied effective assistance of counsel based on his attorney's prior representation of two prosecution witnesses. We reject that contention. The court was apprised of the potential conflict of interest and thus had a duty to "inquire[ ] of defendant to ascertain, on the record, whether he had an awareness of the potential risks involved in his continued representation by the attorney and had knowingly chosen to continue such representation" (People v. Lombardo, 61 N.Y.2d 97, 102, 472 N.Y.S.2d 589, 460 N.E.2d 1074 ; see People v. McCutcheon, 109 A.D.3d 1086, 1087, 971 N.Y.S.2d 609, lv. denied 22 N.Y.3d 1042, 981 N.Y.S.2d 376, 4 N.E.3d 388 ). Although the court erred in failing to conduct such an inquiry, we nonetheless conclude that defendant was not denied effective assistance of counsel inasmuch as he failed to demonstrate that "the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation" (People v. Ortiz, 76 N.Y.2d 652, 657, 563 N.Y.S.2d 20, 564 N.E.2d 630 [internal quotation marks omitted]; see McCutcheon, 109 A.D.3d at 1087, 971 N.Y.S.2d 609 ). Contrary to defendant's further contention that he was denied effective assistance of counsel based on his attorney's constitutionally inadequate performance, we conclude that defendant was afforded 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 agree with defendant, however, that the court erred in granting the People's motion to amend the indictments at the close of proof. The fact that defendant consented to the amendments is of no moment because he has " ‘a fundamental and nonwaivable right to be tried only on the crimes charged’ " (People v. Graves, 136 A.D.3d 1347, 1348, 25 N.Y.S.3d 477, lv. denied 27 N.Y.3d 1069, 38 N.Y.S.3d 840, 60 N.E.3d 1206 ; see People v. Powell, 153 A.D.2d 54, 58, 549 N.Y.S.2d 276, lv. denied 75 N.Y.2d 969, 556 N.Y.S.2d 254, 555 N.E.2d 626 ). "An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it" (CPL 200.70 [2 ]; see People v. Grega, 72...