People v. Wilcox

• Citation: 144 N.Y.S.3d 770,192 A.D.3d 1540
• Decision Date: 19 March 2021
• Docket Number: 913,KA 16-01830
• Parties: The PEOPLE of the State of New York, Respondent, v. Keith V. WILCOX, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1540
144 N.Y.S.3d 770

The PEOPLE of the State of New York, Respondent,
v.
Keith V. WILCOX, Defendant-Appellant.

913
KA 16-01830

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

Entered: March 19, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

192 A.D.3d 1540

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

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of predatory sexual assault against a child ( Penal Law § 130.96 ), two counts of criminal sexual act in the first degree (§ 130.50 [2]), 10 counts of criminal sexual act in the second degree (§ 130.45 [1]), 14

192 A.D.3d 1541

counts of criminal sexual act in the third degree (§ 130.40 [2]), one count of sexual abuse in the first degree (§ 130.65 [4]) and five counts of endangering the welfare of a child (§ 260.10 [1]). We reject defendant's contention that Supreme Court erred in refusing to suppress statements he made to the Child Protective Service (CPS) caseworker who interviewed him while he was in custody inasmuch as the CPS caseworker was not acting as an agent of the police (see People v. Worthy , 109 A.D.3d 1140, 1141, 972 N.Y.S.2d 122 [4th Dept. 2013], lv denied 23 N.Y.3d 970, 988 N.Y.S.2d 577, 11 N.E.3d 727 [2014] ). Although the CPS caseworker was part of a joint task force that included members of law enforcement, he testified that he did not consult with any law enforcement agents regarding his plans to interview defendant. Furthermore, no law enforcement agents were present at that interview, and there was no police involvement in the preparation or performance of the interview (see People v. Rodriguez , 135 A.D.3d 1181, 1185, 23 N.Y.S.3d 692 [3d Dept. 2016], lv denied

144 N.Y.S.3d 773

28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ; People v. Whitmore , 12 A.D.3d 845, 847, 785 N.Y.S.2d 140 [3d Dept. 2004], lv denied 4 N.Y.3d 769, 892, 792 N.Y.S.2d 12, 825 N.E.2d 144 [2005] ).

Defendant's contention that the jury charge was confusing and improper is unpreserved for our review (see People v. Whitfield , 72 A.D.3d 1610, 1610, 899 N.Y.S.2d 705 [4th Dept. 2010], lv denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). Defendant also contends that the evidence is legally insufficient to support the conviction because the testimony of the victims was incredible as a matter of law. Although defendant failed to preserve his contention for our review (see People v. Gaston , 100 A.D.3d 1463, 1464, 953 N.Y.S.2d 780 [4th Dept. 2012] ), we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence (see People v. Wilson , 175 A.D.3d 1800, 1800, 109 N.Y.S.3d 530 [4th Dept. 2019] ). 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 [2007] ), however, 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 [1987] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude that "the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded" ( People v. Orta , 12 A.D.3d 1147, 1147, 784 N.Y.S.2d 812...