People v. VickersPeople v. Vickers
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and the amended indictment is dismissed without prejudice to the People to re-present any appropriate charges to another grand jury.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him following a jury trial of sodomy in the first degree (
The convictions arise from two indictments based upon allegations that defendant sexually assaulted or abused five underage victims. The first indictment, which is the subject of appeal No. 1, charged defendant with course of sexual conduct against a child in the first degree (
Before trial, County Court granted the People‘s motion to consolidate the indictments and denied defendant‘s cross motion to sever count one from the second indictment. After the close of proof, the court granted the People‘s motion to amend the indictments so that the two counts of course of sexual conduct against a child in the first degree, as charged in the first indictment and count one of the second indictment, were replaced with two counts of sodomy in the first degree (
Viewing the evidence in light of the elements of the crimes in appeal Nos. 1 and 2 as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant‘s contention that the court erred in granting the People‘s motion to consolidate the indictments. The offenses charged therein were the “same or similar in law” (
Defendant contends that he was denied effective assistance of counsel based on his attorney‘s prior representation of two prosecution witnesses. We reject that contention. The court was apprised of the potential conflict of interest and thus had a duty to “inquire[ ] of defendant to ascertain, on the record, whether he had an awareness of the potential risks involved in his continued representation by the attorney and had knowingly chosen to continue such representation” (People v Lombardo, 61 NY2d 97, 102 [1984]; see People v McCutcheon, 109 AD3d 1086, 1087 [2013], lv denied 22 NY3d 1042 [2013]). Although the court erred in failing to conduct such an inquiry, we nonetheless conclude that defendant was not denied effective assistance of counsel inasmuch as he failed to demonstrate that “the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation” (People v Ortiz, 76 NY2d 652, 657 [1990] [internal quotation marks omitted]; see McCutcheon, 109 AD3d at 1087). Contrary to defendant‘s further contention that he was denied effective assistance of counsel based on his attorney‘s constitutionally inadequate performance, we conclude that defendant was afforded meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We agree with defendant, however, that the court erred in granting the People‘s motion to amend the indictments at the close of proof. The fact that defendant consented to the amendments is of no moment because he has ” ‘a fundamental and nonwaivable right to be tried only on the crimes charged’ ” (People v Graves, 136 AD3d 1347, 1348 [2016], lv denied 27 NY3d 1069 [2016]; see People v Powell, 153 AD2d 54, 58 [1989], lv denied 75 NY2d 969 [1990]). “An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it” (
In light of our determination, we address defendant‘s challenge to the severity of the sentence only insofar as it concerns count 10 of the amended indictment in appeal No. 2 and conclude that the sentence with respect to that count is not unduly harsh and severe.
Carni, J.P., Lindley, NeMoyer, Troutman and Scudder, JJ.