GRAVES, RAYMOND, PEOPLE v ( 2016 )


Menu:
  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1396
    KA 12-01265
    PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    RAYMOND GRAVES, DEFENDANT-APPELLANT.
    FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Onondaga County Court (Joseph E.
    Fahey, J.), rendered June 26, 2012. The judgment convicted defendant,
    upon a jury verdict, of predatory sexual assault against a child (two
    counts), criminal sexual act in the second degree (19 counts), rape in
    the second degree (16 counts) and endangering the welfare of a child
    (two counts).
    It is hereby ORDERED that the judgment so appealed from is
    unanimously modified on the law by reversing those parts convicting
    defendant of two counts of predatory sexual assault against a child,
    16 counts of criminal sexual act in the second degree, and two counts
    of endangering the welfare of a child and vacating the sentence
    imposed on those counts, and as modified the judgment is affirmed, and
    a new trial is granted on counts 1, 4, 5, 10 through 13, 17 through
    28, and 45 of the indictment.
    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), 19 counts of criminal sexual act in the
    second degree (§ 130.45 [1]), 16 counts of rape in the second degree
    (§ 130.30 [1]) and two counts of endangering the welfare of a child (§
    260.10 [1]). We reject the contention of defendant that the
    conviction is not supported by legally sufficient evidence (see
    generally People v Bleakley, 69 NY2d 490, 495). Viewing the evidence
    in the light most favorable to the People (see People v Contes, 60
    NY2d 620, 621), we conclude that “there is a valid line of reasoning
    and permissible inferences to support the jury’s finding that
    defendant committed the crimes of which he was convicted based on the
    evidence presented at trial” (People v Spencer, 119 AD3d 1411, 1413-
    1414, lv denied 24 NY3d 965). Likewise, viewing the evidence in light
    of the elements of the crimes as charged to the jury (see People v
    Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
    -2-                          1396
    KA 12-01265
    against the weight of the evidence (see generally Bleakley, 69 NY2d at
    495).
    We agree with defendant, however, that we must reverse the
    conviction of predatory sexual assault under counts one and five,
    criminal sexual act under counts 10 through 13 and 17 through 28, and
    endangering the welfare of a child under counts four and 45, because
    County Court’s instructions created the possibility that the jury
    convicted him based on theories different from those set forth in the
    indictment, as limited by the bill of particulars. We therefore
    modify the judgment accordingly.
    Although defendant did not object to the court’s instructions and
    thus did not preserve his contention for our review, we conclude that
    “preservation is not required” (People v Greaves, 1 AD3d 979, 980),
    inasmuch as “defendant has a fundamental and nonwaivable right to be
    tried only on the crimes charged,” as limited by either the bill of
    particulars or the indictment itself (People v Duell, 124 AD3d 1225,
    1226 [internal quotation marks omitted], lv denied 26 NY3d 967; see
    Greaves, 1 AD3d at 980; People v Burns, 303 AD2d 1032, 1033). Where
    the court’s jury instruction on a particular count erroneously
    contains an additional theory that differs from the theory alleged in
    the indictment, as limited by the bill of particulars, and the
    evidence adduced at trial could have established either theory,
    reversal of the conviction on that count is required because there is
    a possibility that the jury could have convicted the defendant upon
    the uncharged theory (see People v Martinez, 83 NY2d 26, 32-35; People
    v Grega, 72 NY2d 489, 496; Greaves, 1 AD3d at 980-981; Burns, 303 AD2d
    at 1033-1034). Indeed, such an error cannot be deemed harmless
    because it is impossible for an appellate court reviewing a general
    verdict to ascertain on which theory the jury convicted the defendant
    or whether the jury was unanimous with respect to the theory actually
    charged in that count (see Martinez, 83 NY2d at 34-36; Burns, 303 AD2d
    at 1033-1034).
    Here, counts one and five of the indictment, as limited by the
    bill of particulars, charged defendant with committing predatory
    sexual assault against a child by engaging in two or more acts of oral
    sexual “contact” with each victim consisting of “contact between the
    mouth and the penis” (Penal Law § 130.00 [2] [a]; see §§ 130.75 [1]
    [b]; 130.96). The court’s instructions, however, permitted the jury
    to convict defendant upon a finding that he engaged in two or more
    acts of sexual conduct with each victim, which included “contact
    between . . . the mouth and the . . . vagina” (§ 130.00 [2] [a]), as
    well as sexual contact by touching, either directly or through
    clothing, the sexual or intimate parts of the victims for the purpose
    of sexual gratification (see § 130.00 [3]). The People adduced
    evidence at trial that defendant engaged in those additional forms of
    sexual conduct with the victims during the relevant time frames.
    Thus, defendant’s conviction of predatory sexual assault against a
    child under counts one and five must be reversed because the jury, or
    members thereof, could have convicted defendant upon an uncharged
    theory (see Greaves, 1 AD3d at 980-981; Burns, 303 AD2d at 1033-1034;
    see generally Grega, 72 NY2d at 496; People v Gunther, 67 AD3d 1477,
    -3-                          1396
    KA 12-01265
    1477-1478). The People contend that any error was harmless because
    there is no basis on this record to conclude that the jury convicted
    defendant of committing instances of uncharged sexual conduct, but not
    the conduct charged in the indictment, as limited by the bill of
    particulars. We reject that contention. Where, as here, there is
    evidence establishing uncharged theories, thus rendering it impossible
    for us to determine whether the verdict was based on such uncharged
    theories, we may not employ a harmless error analysis and, “in effect,
    assume the jury’s fact-finding function by concluding that the jury
    must have reached its result on [the charged theories only]”
    (Martinez, 83 NY2d at 35).
    We further agree with defendant that the court’s instruction with
    respect to the charges of criminal sexual act under counts 10 through
    13 and 17 through 28 permitted the jury to convict him upon a theory
    not charged in the indictment, as limited by the bill of particulars.
    The bill of particulars alleged that defendant had engaged in oral
    sexual conduct with one of the victims consisting of contact between
    the mouth and the penis, whereas the court’s erroneous instruction
    permitted the jury to convict defendant also upon a finding that he
    engaged in oral sexual conduct involving contact between the mouth and
    the vagina (see Penal Law §§ 130.00 [2] [a]; 130.45 [1]). The People
    adduced evidence at trial that defendant’s acts against the victim
    during the relevant time periods included contact between the mouth
    and the vagina and, thus, we conclude that the jury, or members
    thereof, could have convicted defendant upon an uncharged theory (see
    Greaves, 1 AD3d at 980-981; Burns, 303 AD2d at 1033-1034).
    In addition, we conclude that defendant’s conviction of
    endangering the welfare of a child under counts four and 45 must be
    reversed based on the same rationale. The jury, or members thereof,
    could have convicted defendant on uncharged theories because the
    court’s instruction permitted the jury to convict defendant upon a
    finding that he “knowingly act[ed] in a manner likely to be injurious
    to the physical, mental or moral welfare” of the victims (Penal Law §
    260.10 [1]) without limiting the jury’s consideration to the
    particular acts of sexual “contact” alleged in the bill of
    particulars. Here, the People adduced evidence at trial of additional
    acts constituting uncharged theories of that crime.
    Defendant failed to preserve for our review his further
    contention that certain counts of the indictment were rendered
    duplicitous by evidence adduced at trial (see People v Allen, 24 NY3d
    441, 449-450), 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]; People v Brown, 82 AD3d 1698, 1700, lv denied 17
    NY3d 792). We reject defendant’s contention that he was denied
    effective assistance of counsel based on, among other things, defense
    counsel’s failure to move to dismiss the subject counts of the
    indictment as duplicitous. “To prevail on a claim of ineffective
    assistance of counsel, it is incumbent on defendant to demonstrate the
    absence of strategic or other legitimate explanations for [defense]
    counsel’s failure to [make such a motion]” (People v Rivera, 71 NY2d
    705, 709). Here, we conclude that “defendant failed to meet that
    -4-                          1396
    KA 12-01265
    burden, and thus defense counsel’s purported failure, without more, is
    insufficient to demonstrate ineffective assistance” (Brown, 82 AD3d at
    1700-1701 [internal quotation marks omitted]). Viewing the evidence,
    the law, and the circumstances of this case, in totality and as of the
    time of the representation, we conclude that defendant received
    meaningful representation (see generally People v Baldi, 54 NY2d 137,
    147). Indeed, the record establishes that defense counsel made a
    clear and cogent opening statement directed at the credibility of the
    witnesses and the requirement that the People prove defendant’s guilt
    beyond a reasonable doubt, lodged appropriate objections, conducted
    meaningful cross-examination of the witnesses that raised some
    inconsistencies in their testimony and attempted to cast doubt on
    their veracity, and presented a closing argument questioning the
    credibility of the People’s witnesses and arguing that the victims’
    testimony was too vague to establish defendant’s guilt beyond a
    reasonable doubt (see generally People v Alexander, 109 AD3d 1083,
    1085).
    Defendant failed to preserve for our review his further
    contention that he was deprived of the right to fair notice of the
    charges against him because the ranges of dates in the indictment
    during which the offenses allegedly occurred were overbroad (see
    People v Erle, 83 AD3d 1442, 1443, lv denied 17 NY3d 794). In any
    event, we conclude that, “ ‘[i]n view of the age[s] of the victim[s]
    and the date on which [they] reported the crimes, . . . the one-month
    . . . periods specified in the indictment provided defendant with
    adequate notice of the charges against him to enable him to prepare a
    defense’ ” (People v Coapman, 90 AD3d 1681, 1682, lv denied 18 NY3d
    956; see Spencer, 119 AD3d at 1413).
    By failing to object to any of the alleged instances of
    prosecutorial misconduct, defendant failed to preserve for our review
    his contention with respect thereto (see CPL 470.05 [2]). In any
    event, we conclude that “[a]ny improprieties were not so pervasive or
    egregious as to deprive defendant of a fair trial” (People v Jackson,
    108 AD3d 1079, 1080, lv denied 22 NY3d 997 [internal quotation marks
    omitted]).
    Finally, we conclude that the sentence imposed on the remaining
    counts of the indictment is not unduly harsh or severe.
    Entered:   February 5, 2016                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 12-01265

Filed Date: 2/5/2016

Precedential Status: Precedential

Modified Date: 10/7/2016