September 27, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
TYREE ALEXANDER, DEFENDANT-APPELLANT.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered December 16, 2005. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree (two counts) and endangering the welfare of a child (two counts).
O'CONNELL AND ARONOWITZ, ALBANY (STEPHEN R. COFFEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
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 each of sexual abuse in the first degree (Penal Law § 130.65 ) and endangering the welfare of a child (§ 260.10 ). Contrary to defendant's contention, he was not denied his constitutional right to proceed pro se. Defendant sought to proceed pro se because he believed that his assigned counsel did not spend enough time both with him and in researching the case. After County Court ordered defense counsel to spend the afternoon with defendant preparing for trial, defendant did not again seek to proceed pro se. We conclude that defendant's request to proceed pro se was made in the context of a claim expressing his dissatisfaction with his attorney and was not unequivocal (see People v Gillian, 8 N.Y.3d 85, 88; People v Caswell, 56 A.D.3d 1300, 1301-1302, lv denied 11 N.Y.3d 923, reconsideration denied 12 N.Y.3d 781). "In any event, ... defendant abandoned his request by subsequently acting in a manner indicating his satisfaction with counsel" (People v Jackson, 97 A.D.3d 693, 694, lv denied 20 N.Y.3d 1100; see Gillian, 8 N.Y.3d at 88).
Defendant's contention that the court erred in allowing the seven-year-old victim to give sworn testimony is not preserved for our review (see People v Dickens, 48 A.D.3d 1034, 1034-1035, lv denied 10 N.Y.3d 958). In any event, the court did not abuse its discretion in admitting that testimony inasmuch as the witness demonstrated sufficient intelligence and capacity, and further demonstrated that she understood the nature of an oath, i.e., she "appreciate[d] the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished" (CPL 60.20 ; see People v Beckwith, 289 A.D.2d 956, 958, amended on rearg 303 A.D.2d 1054; see generally People v Nisoff, 36 N.Y.2d 560, 565-566). The court properly determined that the presumption of incompetency was overcome (see People v Hetrick, 80 N.Y.2d 344, 349; People v Morales, 80 N.Y.2d 450, 452-453; People v Schroo, 87 A.D.3d 1287, 1289, lv denied 19 N.Y.3d 977).
Defendant next contends that the evidence is legally insufficient to establish that he had sexual contact with the victim. Defendant failed to preserve that contention for our review inasmuch as he failed to renew his motion for trial order of dismissal after presenting evidence (see People v Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678). In any event, that contention lacks merit (see generally People v Bleakley, 69 N.Y.2d 490, 495). Further, 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), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).
We reject the contention of defendant that he received ineffective assistance of counsel. Defendant failed to establish the absence of a strategic reason for defense counsel's failure to exercise any challenges during voir dire (see generally People v Benevento, 91 N.Y.2d 708, 712; People v Turck, 305 A.D.2d 1072, 1073, lv denied 100 N.Y.2d 566). Defendant also failed to establish the absence of a strategic reason for defense counsel's failure to call any witnesses at the Huntley hearing, or any witnesses other than defendant at trial (see generally Benevento, 91 N.Y.2d at 712). Inasmuch as the court did not abuse its discretion in permitting the victim to testify, defense counsel's failure to object to the admission of that testimony cannot be considered ineffective assistance of counsel (see People v Stultz, 2 N.Y.3d 277, 287, rearg denied 3 N.Y.3d 702; People v Crump, 77 A.D.3d 1335, 1336, lv denied 16 N.Y.3d 857). Contrary to defendant's contention, the record establishes that defense counsel adequately cross-examined the witnesses at trial and presented a cogent defense. In fact, we note that defense counsel's cross-examination of the witnesses raised some inconsistencies in their testimony, and defendant relies on those inconsistencies in contending that the verdict is against the weight of the evidence. Defendant failed to establish the absence of a strategic reason for the fact that defense counsel did not move for a mistrial or seek a curative instruction after an outburst by the mother of the victim during the testimony of the victim's sister (see generally Benevento, 91 N.Y.2d at 712). Inasmuch as a motion for a mistrial would have had "little or no chance of success, " defense counsel's failure to seek that relief cannot be considered ineffective assistance (Stultz, 2 N.Y.3d at 287).
Finally, the sentence is not unduly harsh or severe, particularly in light of defendant's past criminal conduct.