People v. WattsPeople v. Watts
HUG LAW, PLLC, ALBANY (MATTHEW C. HUG OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered April 3, 2017. The judgment convicted defendant upon a jury verdict of promoting prostitution in the third degree, rape in the third degree (three counts), criminal sexual act in the third degree (two counts) and endangering the welfare of a child (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury trial of promoting prostitution in the third degree (
Defendant contends that County Court lacked jurisdiction over counts 1 and 7 of the indictment. Defendant‘s contention is actually an assertion that Onondaga County was not the proper venue for those counts because the alleged conduct took place in a different county. “Venue, as distinguished from territorial jurisdiction, refers to the proper county or place of trial, not to the power of the court to hear and determine the case . . . Thus—unlike territorial jurisdiction which goes to the very essence of the State‘s power to prosecute and which may never be waived—questions relating only to the proper place for the trial are waivable” (People v McLaughlin, 80 NY2d 466, 471 [1992]). By failing to timely raise the issue, defendant waived any contention that venue was improper (see People v Cornell, 17 AD3d 1010, 1011 [4th Dept 2005], lv denied 5 NY3d 805 [2005]).
We reject defendant‘s contention that he was deprived of a fair trial by the court‘s Molineux ruling, which permitted the People to elicit testimony from the victim‘s 15-year-old friend that she was present when the victim met defendant in the parking lot prior to her trip to New York City and that defendant had asked the friend if she wanted to engage in prostitution that same weekend. The contested evidence was relevant to show a common scheme or plan and to establish that defendant knew that he was promoting prostitution when he
Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we reject defendant‘s contention that the evidence is legally insufficient to support his conviction of promoting prostitution in the third degree and endangering the welfare of a child (see generally People v Smith, 6 NY3d 827, 828 [2006], cert denied 548 US 905 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). “The statutory definition of the term ‘advances prostitution’ . . . encompasses [a] defendant‘s conduct in engaging in conduct ‘designed to institute, aid or facilitate an act or enterprise of prostitution’ ” (People v Simone-Taylor, 148 AD2d 933, 934 [4th Dept 1989], lv denied 74 NY2d 669 [1989]; see
Further, although “a different verdict would not have been unreasonable inasmuch as this case rests largely on the jury‘s credibility findings with respect to the testimony of the victim” (People v Zeitz, 148 AD3d 1636, 1637 [4th Dept 2017], lv denied 29 NY3d 1089 [2017] [internal quotation marks omitted]) we nevertheless conclude, after viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Contrary to defendant‘s contention, the victim‘s testimony “was not incredible as a matter of law . . . , and the conflicting testimony raised issues of credibility for the jury to
Defendant‘s contention that he was deprived of a fair trial due to prosecutorial misconduct “is unpreserved for our review inasmuch as defendant did not object to any of the alleged instances of misconduct” (People v Pendergraph, 150 AD3d 1703, 1703 [4th Dept 2017], lv denied 29 NY3d 1132 [2017]; see
We reject defendant‘s contention that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel‘s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks omitted]). Contrary to defendant‘s assertion, defense counsel was not ineffective in failing to request a circumstantial evidence charge inasmuch as such a charge, as previously discussed, was not warranted (see People v Caban, 5 NY3d 143, 152 [2005]; People v Griffin, 203 AD3d 1608, 1611 [4th Dept 2022], lv denied 38 NY3d 1008 [2022]). Nor was defense counsel ineffective in his cross-examination of the People‘s witnesses. Although defendant notes that defense counsel‘s questioning of the victim elicited a single damaging statement, it is clear when considering defense counsel‘s cross-examination of the victim and the other witnesses, in totality, that counsel pursued an effective strategy of cross-examination by raising inconsistencies in the witnesses’ testimony and attempting to cast doubt on their veracity ( see People v Cortez, 181 AD3d 820, 822 [2d Dept 2020], lv denied 35 NY3d 1065 [2020]; see generally People v Graves, 136 AD3d 1347, 1351 [4th Dept 2016], lv denied 27 NY3d 1069 [2016]; People v Miller, 45 AD3d 1190, 1190 [3d Dept 2007]). With respect to defendant‘s remaining allegations of ineffective assistance of counsel, we conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that defendant received meaningful representation (see Benevento, 91 NY2d at 712; People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that he was penalized for exercising his right to a trial by the imposition of a sentence that is admittedly greater than the sentence offered during the plea negotiation process (see People v Becraft, 140 AD3d 1706, 1706 [4th Dept 2016], lv denied 29 NY3d 946 [2017]; People v Garner, 136 AD3d 1374, 1374 [4th Dept 2016], lv denied 27 NY3d 997 [2016]). Finally, the sentence is not unduly harsh or severe.
Ann Dillon Flynn
Clerk of the Court
Entered: July 28, 2023