People v. Cooper

Timothy P. Donaher, Public Defender, Rochester (William Clauss of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a nonjury verdict of course of sexual conduct against a child in the first degree ( Penal Law § 130.75[1][b] ). Contrary to defendant's contention, the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The victim's testimony established that defendant engaged in two or more acts of sexual conduct with her over more than three months in duration, and her testimony was not incredible as a matter of law (see generally People v. Dupleasis, 112 A.D.3d 1318, 1319, 977 N.Y.S.2d 825, lv. denied 22 N.Y.3d 1138, 983 N.Y.S.2d 496, 6 N.E.3d 615 ; People v. Meacham, 84 A.D.3d 1713, 1715, 922 N.Y.S.2d 721, lv. denied 17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806 ). In addition, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Defendant contends that he was denied effective assistance of counsel because defense counsel failed to move to suppress certain evidence obtained from underneath the porch of his former residence. We conclude that "the record on appeal is inadequate to enable us to determine whether such a motion would have been successful and whether defense counsel was ineffective for failing to make that motion and thus, defendant's contention must be raised by way of a motion pursuant to CPL article 440" ( People v. Walter, 138 A.D.3d 1479, 1480, 30 N.Y.S.3d 459, lv. denied 27 N.Y.3d 1141, 39 N.Y.S.3d 123, 61 N.E.3d 522 ). Indeed, the testimony at the trial suggested that defendant may not have had standing to bring such a motion inasmuch as he may not have lived at the residence at the time of the search (see People v. Bradley, 17 A.D.3d 1050, 1051, 794 N.Y.S.2d 201, lv. denied 5 N.Y.3d 786, 801 N.Y.S.2d 806, 835 N.E.2d 666 ; People v. Sapp, 280 A.D.2d 906, 906, 720 N.Y.S.2d 441, lv. denied 96 N.Y.2d 834, 729 N.Y.S.2d 455, 754 N.E.2d 215 ), and the area of the search was a common area accessible to other tenants of the building (see People v. Lovejoy, 92 A.D.3d 1080, 1082, 938 N.Y.S.2d 377 ; see also People v. Pucci, 37 A.D.3d 1068, 1069, 829 N.Y.S.2d 340,

lv. denied 8 N.Y.3d 949, 836 N.Y.S.2d 559, 868 N.E.2d 242 ). We reject defendant's further contention that he was denied effective assistance of counsel based on defense counsel's failure to cross-examine two of the witnesses who testified at trial (see People v. Thomas, 136 A.D.3d 1390, 1391, 25 N.Y.S.3d 500, lv. denied 27 N.Y.3d 1140, 39 N.Y.S.3d 122, 61 N.E.3d 521, reconsideration denied 28 N.Y3.d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 ; People v. Lewis, 67 A.D.3d 1396, 1396–1397, 888 N.Y.S.2d 814, lv. denied 14 N.Y.3d 772, 898 N.Y.S.2d 104, 925 N.E.2d 109 ). We have examined the remaining allegations of ineffective assistance of counsel raised by defendant and conclude that they lack merit. Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).

Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.