THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v SYDNEY A. ROWE, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
July 11, 2013
962 NYS2d 735
Defendant was charged by indictment with two counts of criminal sexual act in the first degree and two counts of endangering the welfare of a child, stemming from allegations that, on two consecutive days over a weekend in July 2009, he engaged in anal sexual conduct with a four-year-old relative. The victim reported the conduct to his mother, who then contacted child protective services. Defendant was thereafter interviewed by the police and, after being apprised of his Miranda rights, gave two statements to the police, in one of which he admitted to the alleged conduct. After a jury trial, defendant was convicted as charged and was sentenced, as a second child sexual assault felony offender, to 15 years in prison and 15 years of postrelease supervision on each criminal sexual act conviction and one year in jail on each conviction of endangering the welfare of a child, to run concurrently. Defendant now appeals.
We affirm. Defendant‘s convictions of criminal sexual act in the first degree were not against the weight of the evidence.1 As relevant here, in order to convict defendant of that crime, the People were required to prove that he engaged in anal sexual conduct with a victim under the age of 11 (see
Moreover, the jury was entitled to discredit defendant‘s trial testimony that he did not read the written statement he provided to the police, that the statement was produced under coercion and that no sexual contact had occurred between him and the victim. Therefore, even if a different verdict would have been reasonable, when we view the evidence in a neutral light and defer to the jury‘s superior position to determine witness credibility, we are satisfied that the verdict was in accord with the weight of the evidence (see People v Wyre, 97 AD3d 976, 978 [2012], lv denied 19 NY3d 1030 [2012]; People v Harvey, 96 AD3d 1098, 1100 [2012], lv denied 20 NY3d 933 [2012]; People v Lapage, 57 AD3d 1233, 1235 [2008]).
We also reject defendant‘s contention that he was denied the effective assistance of counsel.3 To establish an ineffective assistance of counsel claim, defendant was required to show that counsel failed to provide meaningful representation and an “absence of strategic or other legitimate explanations for counsel‘s allegedly deficient conduct” (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marks and citations omitted]; see People v Nguyen, 90 AD3d 1330, 1332 [2011], lv denied 18 NY3d 960 [2012]). First, defendant asserts that counsel erred
Similarly, we find unavailing defendant‘s argument that trial counsel‘s failure to object to the admission of certain testimony denied him the effective assistance of counsel. In most of the instances noted by defendant in which counsel failed to object to hearsay testimony, County Court prevented the hearsay statements from being admitted into evidence. Contrary to defendant‘s claim on appeal, the Department of Social Services caseworker who investigated the abuse allegations was not permitted to testify as to the nature of her conversations with the victim and her investigation report was not admitted into evidence. As to the testimony of the police officer who took defendant‘s statement, defendant points to no specific hearsay statement to which he now objects, and our review of the record fails to reveal the improper admission of any hearsay statement that would have deprived defendant of a fair trial.
We are also unpersuaded by defendant‘s claim that counsel was ineffective due to his failure to object to the testimony of the victim‘s mother regarding the victim‘s disclosure of the sexual conduct. Under the prompt outcry rule, “evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place” (People v Rosario, 17 NY3d 501, 511 [2011] [internal quotation marks and citations omitted]; see People v Perkins, 27 AD3d 890, 892 [2006], lv denied 6 NY3d 897 [2006]; People v Allen, 13 AD3d 892, 895 [2004], lv denied 4 NY3d 883 [2005]). “[P]romptness is a relative concept dependent on the facts—what might qualify as prompt in one case might not in another” (People v Rosario, 17 NY3d at 512-513, quoting People v
While the record does reveal some errors by counsel, a defendant is not entitled to a perfect trial (see People v Jones, 101 AD3d 1241, 1242 [2012]; People v Jordan, 99 AD3d 1109, 1110 [2012], lv denied 20 NY3d 1012 [2013]). Here, counsel was successful in achieving a favorable Sandoval compromise, provided targeted cross-examinations of witnesses, delivered articulate opening and closing statements, sought suppression of defendant‘s incriminating statement and presented a cogent, albeit unsuccessful, defense theory despite overwhelming evidence of defendant‘s guilt. Upon our review of the record, “we discern no single, nor cumulative, error sufficient to deprive defendant of his right to the effective assistance of counsel” (People v Porter, 82 AD3d 1412, 1416 [2011], lv denied 16 NY3d 898 [2011]; see People v Wiltshire, 96 AD3d 1227, 1230 [2012]), and we are satisfied that defendant received meaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]; People v Harvey, 96 AD3d at 1100-1101).
Defendant‘s remaining contentions have been considered and are found to be without merit.
Rose, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Stein, J.
Rose, J.P., Lahtinen and Egan Jr., JJ.