THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v WILLIAM R. IZZO III, Appellant.
Supreme Court, Appellate Division, Third Department, New York
March 7, 2013
961 NYS2d 333
Defendant, a former friend of the victim‘s father, lived with the victim (born in 2001) and her family in their home in the Village of Malone, Franklin County for approximately a month in early 2007. During this time, defendant occasionally babysat the victim and her four siblings. Several years later, in the spring of 2010, the victim disclosed that, while living with her family, defendant entered her bedroom where she shared a bed with her sister and made contact with her genitals using his mouth, hands and penis. Defendant was convicted, after a jury trial, of criminal sexual act in the first degree, endangering the welfare of a child and sexual abuse in the first degree and sentenced to concurrent prison terms of 25 years followed by five years of postrelease supervision for criminal sexual act in the first degree, one year for endangering the welfare of a child and seven years with three years of postrelease supervision for sexual abuse in the first degree. On defendant‘s appeal, we affirm.
First, we address defendant‘s claim that a particular juror should have not have been excused for cause, over defense counsel‘s objection, for having “a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial” (
Generally, “when potential jurors reveal knowledge or opinions reflecting a state of mind likely to preclude impartial service, they must in some form give unequivocal assurance
Defendant also argues that the verdict was not supported by legally sufficient evidence1 and was against the weight of the evidence. Given that, in our view, a different verdict would not have been unreasonable, we must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony,” while giving great deference to the jury‘s credibility determinations (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]). Here, “defendant does not dispute that evidence of the elements of the crimes charged was presented through the trial testimony of the victim” (People v Smith, 272 AD2d 713, 715 [2000], lv denied 95 NY2d 871 [2000]), but instead argues that the victim‘s testimony required corroboration and, in any event, was incredible. Contrary to defendant‘s contention on appeal, the then nine-year-old victim was competent to testify under oath and such testimony did not require corroboration. Indeed, only when a witness is less than nine years old and is not qualified by the court to understand the nature of an oath is the ensuing unsworn testimony deemed insufficient to sustain a conviction absent corroboration (see
Further, our review of the trial transcript persuades us that the jury was justified in crediting the victim‘s testimony and the verdict was not against the weight of the evidence. In arguing that the victim‘s testimony was unworthy of belief, defend
Next, we reject defendant‘s argument that he was deprived of the effective assistance of counsel, as he did not meet his burden “of ‘demonstrat[ing] the absence of strategic or other legitimate explanations’ for counsel‘s allegedly deficient conduct” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]). Defendant relies first on defense counsel‘s failure to introduce prior inconsistent statements of the victim during cross-examination. As previously discussed, the alleged inconsistencies pertained only to immaterial aspects of the victim‘s testimony. Further, counsel did cross-examine the victim about some of these statements and she explained that she could not remember them. We find the decision not to badger a child victim of sexual abuse—about largely immaterial inconsistent statements that she professes not to remember—to be a sound trial strategy, especially in light of “the delicate and often difficult task of cross-examining a child who claimed to have been the victim of a sexual assault” (People v Hemingway, 85 AD3d 1299, 1303 [2011]; see People v King, 79 AD3d 1277, 1280 [2010], lv denied 16 NY3d 860 [2011]). Likewise, defendant has not demonstrated that counsel‘s failure to promptly object to the People‘s use of leading questions on direct examination of the victim lacked a strategic basis, given that the use of leading questions when directly examining a child sex abuse victim is not always improper (see People v Porlier, 55 AD3d 1059, 1062 [2008]; People v Mendoza, 49 AD3d 559, 561 [2008], lv denied 10 NY3d 937 [2008]). Defendant‘s claim that his counsel failed to prepare or call potential wit-
Finally, given the nature of the crimes committed against this young, vulnerable victim, defendant‘s significant criminal history—which includes a prior sex offense against a two-year-old female—and his refusal to accept accountability for his crimes, we cannot find that County Court‘s decision to sentence him to the maximum allowable sentence was harsh or excessive (see
Mercure, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.