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The People of the State of New York v. Richard G. Kirk

June 8, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
RICHARD G. KIRK, SR.,
DEFENDANT-APPELLANT.



Appeal from a judgment of the Oswego County Court (James W. McCarthy, J.), rendered March 19, 2008.

People v Kirk

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 8, 2012

PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.

The judgment convicted defendant, upon a jury verdict, of criminal sexual act in the first degree (4 counts), sexual abuse in the first degree (11 counts), sexual abuse in the second degree (4 counts) and endangering the welfare of a child (6 counts).

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and as a matter of discretion in the interest of justice by reversing those parts convicting defendant of endangering the welfare of a child under counts 11-14 and 35-36 of the indictment and dismissing those counts and by reversing those parts convicting defendant of criminal sexual act in the first degree under counts 2-4, sexual abuse in the first degree under counts 5-6, 19-20, 22 and 24 and sexual abuse in the second degree under counts 7 and 26-27 and dismissing those counts without prejudice to the People to re-present any appropriate charges under those counts of the indictment to another grand jury, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of 4 counts of criminal sexual act in the first degree (Penal Law § 130.50 [3], [4]), 11 counts of sexual abuse in the first degree (§ 130.65 [3]), 4 counts of sexual abuse in the second degree (§ 130.60 [2]), and 6 counts of endangering the welfare of a child (§ 260.10 [1]). 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 reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). "[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury . . ., and the testimony of the [witnesses] with respect to the [disclosure of the sexual abuse] was not so inconsistent or unbelievable as to render it incredible as a matter of law" (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted]).

We reject defendant's further contention that County Court erred in permitting testimony concerning child sexual abuse accommodation syndrome (CSAAS) inasmuch as "[t]he expert witness who testified with respect to CSAAS provided only a general explanation of the possible behaviors demonstrated by a victim of child sexual abuse, and [she] did not impermissibly offer an opinion on the issue whether defendant had committed the sex crimes charged in the indictment" (People v Wallace, 60 AD3d 1268, 1270, lv denied 12 NY3d 922; see People v Carroll, 95 NY2d 375, 387). Contrary to defendant's contention, we conclude that the testimony of his accomplice, who was his girlfriend and the mother of the victims, was sufficiently corroborated by other evidence tending to connect defendant to the commission of the crimes (see generally People v Reome, 15 NY3d 188, 191-192).

Defendant also contends that his original defense counselwas ineffective in failing to seek dismissal of counts 11-14 and 35-36 of the indictment, charging him with endangering the welfare of a child, as well as counts 25-28 of the indictment, charging him with sexual abuse in the second degree, because those counts were time-barred. Addressing first counts 25-28, we conclude that defendant's contention is academic to the extent that it is premised upon the failure of original defense counsel to seek dismissal of counts 25 and 28 inasmuch as those counts were dismissed during trial. To the extent that defendant's contention is premised upon the failure of original defense counsel to seek dismissal of counts 26 and 27, we conclude that it involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440 (see People v Peters, 90 AD3d 1507, 1508; see also CPL 30.10 [2] [c], [3] [f]).

Addressing next counts 11-14 and 35-36, we note that the People do not dispute that those counts are governed by a two-year statute of limitations (see CPL 30.10 [2] [c]) and should have been dismissed as time-barred. We therefore modify the judgment accordingly. Under the circumstances of this case, however, we further conclude that defendant was not thereby deprived of effective assistance of counsel (see People v Wise, 49 AD3d 1198, 1200, lv denied 10 NY3d 940, 966). To the extent that the contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel is based on matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440 (see e.g. Peters, 90 AD3d at 1508; People v McKnight, 55 AD3d 1315, 1317, lv denied 11 NY3d 927), and we conclude on the record before us that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147).

We also conclude that there is no merit to the contention of defendant in his main and pro se supplemental briefs that his indelible right to counsel had attached before he made statements to a police investigator. "The indelible right to counsel attaches in two situations: upon the commencement of formal proceedings, whether or not the defendant has actually retained or requested a lawyer . . . [, and] where an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter' " (People v Foster, 72 AD3d 1652, 1653, lv dismissed 15 NY3d 750, quoting People v West, 81 NY2d 370, 373-374; see People v Lopez, 16 NY3d 375, 380). Contrary to defendant's contention, the indelible right to counsel did not attach by virtue of an attorney-client relationship defendant had in a Family Court proceeding at that time. "[W]hile an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of [defense] counsel . . ., a relationship formed in a civil matter is not entitled to the same deference" (People v Lewie, 17 NY3d 348, 361; see Foster, 72 AD3d at 1653-1654). "We further conclude that the determination of the court to credit the testimony of the police officers that defendant did not invoke his right to counsel before signing the [written statements in question] is entitled to deference . . ., and we see no basis to disturb that determination" (People v Alexander, 51 AD3d 1380, 1382, lv denied 11 NY3d 733; see generally People v Prochilo, 41 NY2d 759, 761-762).

We reject the further contention of defendant in his main brief that his written statements to the police were involuntary and that the court therefore erred in refusing to suppress them. " The voluntariness of a confession is to be determined by examining the totality of the circumstances surrounding the confession' " (People v Camacho, 70 AD3d 1393, 1394, lv denied 14 NY3d 886, 887; see also People v Kithcart, 85 AD3d 1558, 1559, lv denied 17 NY3d 818) and, here, the record of the suppression hearing supports the court's determination that the statements at issue were not rendered involuntary by ...


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