THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RUSSELL F. WAGNER, Appellant.
Supreme Court, Appellate Division, Third Department, New York
April 8, 2010
[899 NYS2d 392]
Defendant was charged by a nine-count indictment with numerous crimes in connection with allegations that he provided alcohol to three minor females and engaged in sexual contact with them. At the conclusion of trial, the jury acquitted defendant of sexual abuse in the first degree, criminal sexual act in the first degree and rape in the third degree, but convicted
Defendant appeals.
The convictions were supported by the weight of the evidence. Three females testified that defendant regularly supplied them with alcohol while two were 16 and one was 17 years old. Each victim testified that defendant touched or grabbed her breasts and they witnessed him doing the same thing to the others’ breasts. One of defendant‘s own witnesses, a classmate of the victims, testified that she saw him grab the breasts of the other minor females and he had grabbed her breasts as well. The jury could infer from his actions that defendant‘s intention in grabbing the victims’ breasts was either for his sexual gratification or for the purpose of degrading or humiliating the victims (see
The prosecutor did not violate County Court‘s pretrial ruling by questioning a witness concerning defendant‘s prior bad acts in Massachusetts. The pretrial ruling prohibited the People from discussing any details of defendant‘s 1999 Massachusetts conviction. The People did not mention that conviction. Rather, the prosecutor merely asked follow-up questions of one of the victims who testified that defendant provided her with alcohol and removed her clothing while they were on a trip to Mas
The prosecutor did not engage in misconduct during summation. Aside from one inappropriate reference to a witness‘s grand jury testimony, which was cured by defense counsel‘s objection and County Court‘s admonition that the jury disregard that statement, the prosecutor‘s statements on summation constituted fair comment on the evidence or reasonable responses to defense counsel‘s summation (see People v. Cherry, 46 AD3d 1234, 1237-1238 [2007], lv denied 10 NY3d 839 [2008]; People v. Grady, 40 AD3d 1368, 1374-1375 [2007], lv denied 9 NY3d 923 [2007]).
Defendant received the effective assistance of counsel. Counsel successfully moved to dismiss one count and presented a coherent defense that resulted in an acquittal of all three felony counts (see People v. Conklin, 63 AD3d at 1277). Defendant‘s allegations of ineffectiveness that relate to matters outside the record cannot be reviewed on appeal and are more appropriately raised in a motion pursuant to
Similarly, defendant‘s allegations concerning exculpatory information on his laptop computer, which he received back from the police after he was released from prison, are based on non-record information and should be raised in a motion pursuant to
Lastly, based upon his conviction of forcible touching, defendant is required to register as a sex offender and County Court was required to impose sex offender surcharges and fees (see
Peters, J.P., Malone Jr., Kavanagh and Garry, JJ., concur.
Ordered that the judgment is affirmed.
McCarthy, J.
McCarthy, J.
