State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 105189
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
TIMOTHY L. KNAPP,
Appellant.
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Calendar Date: February 10, 2016
Before: Peters, P.J., Garry, Rose, Devine and Clark, JJ.
__________
Robert A. Gouldin, Oneonta, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Damian M.
Sonsire of counsel), for respondent.
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Devine, J.
Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered July 3, 2012, upon a verdict
convicting defendant of the crime of predatory sexual assault
against a child (four counts).
Defendant was charged in an indictment with four counts of
predatory sexual assault against a child as a result of
allegations that he subjected the victim (born in 2000) to a
range of improper sexual contact in the summer of 2011.
Following a jury trial, he was convicted as charged. County
Court sentenced defendant to an aggregate term of 15 years to
life in prison, and he now appeals.
-2- 105189
We affirm. Defendant failed to preserve for our review his
contention that three of the four counts in the indictment are
multiplicitous (see People v Blount, 129 AD3d 1303, 1304 [2015];
People v Jefferson, 125 AD3d 1463, 1464 [2015], lv denied 25 NY3d
990 [2015]). The argument is without merit, in any case, as the
counts are premised upon separate and distinct types of sexual
contact that occurred during the summer of 2011 (see People v
Jefferson, 125 AD3d at 1464; People v Brandel, 306 AD2d 860, 860
[2003]; see also Penal Law §§ 130.35 [4]; 130.50 [4]; 130.96).
Defendant next asserts that the verdict was against the
weight of the evidence. The record reveals that the victim was
11 years old in the summer of 2011 and that defendant was caring
for her and her siblings while her mother worked. While the
victim indicated that the abuse occurred in various rooms of the
house, she testified that the bulk of the incidents occurred in
her mother's bedroom, to which she would be ordered on various
pretexts by defendant. He sexually abused her in a variety of
ways in the bedroom, with the victim recounting multiple
instances of vaginal and anal sex. The victim further testified
to instances where she was forced to perform oral sex on
defendant and where he performed oral sex on her. The victim's
younger sister also testified and recalled incidents when
defendant and the victim were in the bedroom with the door shut
during the summer of 2011.
The victim did not disclose the abuse for several months
because of threats made by defendant and concerns that her mother
would not believe her, and the mother only learned of it after
witnessing an argument between defendant and the victim's
stepsister wherein the latter threatened to tell "what [defendant
had] been doing" with the victim. In our view, an acquittal
would not have been unreasonable given the absence of physical
evidence establishing that the abuse had occurred, as well as the
contentious relationships between defendant and the victim's
family members that might have motivated the victim to fabricate
her accusations (see People v VanDeusen, 129 AD3d 1325, 1326
[2015], lv denied 26 NY3d 972 [2015]). Defendant explored those
issues at trial, however, and the jury credited the account of
the victim that she had been sexually abused by defendant and had
never been told by any of her family members to lie about what
-3- 105189
had occurred. According great weight to that credibility
determination, as we must, and weighing the conflicting testimony
(see People v Kancharla, 23 NY3d 294, 303 [2014]), we do not find
the verdict to be against the weight of the evidence (see People
v Adams, 135 AD3d 1154, 1155 [2016]; People v VanDeusen, 129 AD3d
at 1326).
Defendant further claims that defense counsel was
ineffective in failing to procure the testimony of a physician
who had examined the victim in December 2011 and found her to
have a generally normal examination that was nonetheless
"consistent with" her claims of sexual abuse. The People first
sought to call the physician to the witness stand, but eventually
chose not to do so and represented that they would not attempt to
introduce the examination report into evidence. Defense counsel
likewise declined to call the physician to testify, explaining to
County Court that the physician had found nothing inconsistent
with the claims of abuse and that, after discussing the issue
with defendant, they had elected not to risk placing the
physician on the witness stand and obtaining what could be
damaging testimony. It is accordingly evident that "a strategic
reason [existed] for the failure complained of by defendant," as
calling the physician could have interfered with defense
counsel's trial strategy of attacking the credibility of the
victim and stressing the absence of physical evidence to show
that she had been abused (People v Gross, 26 NY3d 689, , 2016
NY Slip Op 01204, *3 [2016]; see People v Rivera, 71 NY2d 705,
709 [1988]). Inasmuch as the record in its totality establishes
that defense counsel provided meaningful representation, and the
purported error by defense counsel was not "sufficiently
egregious and prejudicial" to call the remainder of his
performance into question, we find that defendant received the
effective assistance of counsel (People v Caban, 5 NY3d 143, 152
[2005]; see People v Burgos, 90 AD3d 1670, 1670-1671 [2011], lv
denied 19 NY3d 862 [2012]).
Defendant lastly argues that the sentence imposed was harsh
and excessive but, after taking into account his long criminal
history and the nature of offenses for which he was convicted
here, we are unpersuaded (see People v Dean, 122 AD3d 1004, 1005
[2014]; People v Hughes, 114 AD3d 1021, 1025 [2014], lv denied 23
-4- 105189
NY3d 1038 [2014]).
Peters, P.J., Garry, Rose and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court