People v. Wright

• Decision Date: 27 October 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Gary WRIGHT, Appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 1154
931 N.Y.S.2d 727
2011 N.Y. Slip Op. 07524

The PEOPLE of the State of New York, Respondent,
v.
Gary WRIGHT, Appellant.

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

Oct. 27, 2011.

[931 N.Y.S.2d 728]

Kindlon, Shanks & Associates, Albany (Terence L. Kindlon of counsel), for appellant, and appellant pro se.P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.Before: MERCURE, J.P., ROSE, MALONE JR. and KAVANAGH, JJ.

[931 N.Y.S.2d 729]

KAVANAGH, J.

[88 A.D.3d 1154] Appeals (1) from a judgment of the County Court [88 A.D.3d 1155] of Albany County (Herrick, J.), rendered January 12, 2010, upon a verdict convicting defendant of the crimes of attempted rape in the first degree and sexual abuse in the first degree (two counts), (2) by permission, from an order of said court, entered November 12, 2010, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing, and (3) by permission, from an order of said court, entered December 22, 2010, which denied defendant's motion for reconsideration.

On September 5, 2008, defendant was arrested and charged in a misdemeanor complaint with sexual abuse in the third degree and forcible touching, based on the victim's claim that defendant had forced himself on her in the woods behind her home earlier that summer. While those misdemeanor charges were pending, the matter was presented to a grand jury and, on April 3, 2009, an indictment was filed charging defendant with attempted rape in the first degree and two counts of sexual abuse in the first degree. Five days later, the People announced they were ready for trial. After a jury trial that was conducted in November 2009, defendant was convicted of all charges contained in the indictment. He was subsequently sentenced to a prison term of seven years, plus seven years of postrelease supervision on the attempted rape in the first degree conviction, and a three-year prison term, plus three years of postrelease supervision on each of the sexual abuse in the first degree convictions, all sentences to run concurrently. After County Court, without a hearing, denied defendant's motion to vacate the judgment of conviction ( see CPL 440.10), he moved for reconsideration claiming that additional new evidence had been found. The court again denied defendant's motion. Defendant appeals from the judgment of conviction and, by permission, from the denial of his motions. We affirm.

Initially, defendant moved to dismiss the indictment on the ground that the People failed to declare their readiness for trial within 90 days of his arraignment on the misdemeanor complaint ( see CPL 30.30[1][b] ). County Court denied that application because it found that once the indictment was filed charging defendant with felonies, the People had six months to announce their readiness for trial ( see CPL 30.30[1][a] ) and, when the People so declared on April 8, 2009, they complied with this statutory mandate. Defendant also argues that he was deprived of the effective assistance of counsel because, prior to the indictment being filed, the statutory time period for the People to answer ready for trial on the misdemeanor complaint had already expired and, if counsel had moved to dismiss those [88 A.D.3d 1156] charges, the motion would have been granted ( see CPL 30.30[1][b] ).

CPL 30.30(1)(b) provides that the People must declare their readiness for trial within 90 days of the filing of a complaint charging a class A misdemeanor. The People concede that they did not declare that they were ready for trial within 90 days of defendant being arraigned on the misdemeanor complaint, but contend, and we agree, that even if such a motion had been made and the misdemeanor complaint had been dismissed, the People had the right to present evidence regarding the underlying matter to a grand jury and obtain an indictment ( see People v. Osgood, 52 N.Y.2d 37, 45, 436 N.Y.S.2d 213, 417 N.E.2d 507 [1980] ). Moreover, once an indictment was filed charging defendant with felonies, the People had six months to announce that they were ready for trial ( see CPL 30.30[1][a];

[931 N.Y.S.2d 730]

People v. Cooper, 90 N.Y.2d 292, 294, 660 N.Y.S.2d 546, 683 N.E.2d 11 [1997] ). As for defendant's claim that the failure to make this motion constituted ineffective assistance of counsel, we note that prior to the indictment being filed, counsel was involved in plea negotiations with the People and, for strategic reasons, may well have concluded that such a motion was, at best, a futile gesture and not in defendant's best interests ( see People v. Black, 247 A.D.2d 238, 668 N.Y.S.2d 364 [1998], lvs. denied 91 N.Y.2d 970, 971, 672 N.Y.S.2d 849, 851, 695 N.E.2d 718, 720 [1998]; see also People v. Obert, 1 A.D.3d 631, 632, 766 N.Y.S.2d 264 [2003], lv. denied 2 N.Y.3d 764, 778 N.Y.S.2d 782, 811 N.E.2d 44 [2004] ).

Defendant also claims that the victim's testimony was inherently incredible and the convictions are not supported by the weight of the credible evidence introduced at trial. He also argues that even if the jury accepted the victim's account of what transpired, he could not, as a matter of law, have committed the crimes of attempted rape in the first degree and sexual abuse in the first degree.

In conducting a weight of the evidence review where a different verdict would not have been unreasonable, we “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” ( People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006]; see ...