SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
671
KA 12-01585
PRESENT: WHALEN, P.J., SMITH, CENTRA, AND PERADOTTO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BRIAN K. HUTCHINGS, DEFENDANT-APPELLANT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered July 31, 2012. The judgment convicted
defendant, after a nonjury trial, of scheme to defraud in the first
degree (two counts), grand larceny in the third degree, grand larceny
in the fourth degree (three counts), and petit larceny (five counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the total amount of
restitution to $59,153.68, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him after a
nonjury trial of, inter alia, grand larceny in the third degree (Penal
Law § 155.35), defendant contends that the verdict is contrary to the
weight of the evidence. We reject that contention. Defendant is a
former police officer who was the treasurer of the Auburn Police
Department’s Police Benevolent Association (PBA), and this prosecution
arises from his theft over a period of years of some of the PBA funds
that he controlled. Viewing the evidence in light of the elements of
the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342,
349), and upon “weigh[ing the] conflicting testimony, review[ing the]
rational inferences that may be drawn from the evidence and
evaluat[ing] the strength of such conclusions” (id. at 348), we
conclude that the evidence amply supports County Court’s determination
that defendant committed the crimes of which he was convicted. “ ‘In
a bench trial, no less than a jury trial, the resolution of
credibility issues by the trier of fact and its determination of the
weight to be accorded the evidence presented are entitled to great
deference’ ” (People v McCoy, 100 AD3d 1422, 1422; see People v White,
149 AD2d 915, 915-916, lv denied 74 NY2d 854). The court was entitled
to reject defendant’s version of the events “and, upon our review of
the record, we cannot say that the court failed to give the evidence
the weight that it should be accorded” (People v Britt, 298 AD2d 984,
984, lv denied 99 NY2d 556; see McCoy, 100 AD3d at 1422).
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Defendant next contends that he was deprived of a fair trial by
the admission of certain evidence at trial, including summaries of
documents that were admitted and one of the rules of the Auburn Police
Department. “By stipulating to the admissibility of [some of the
summaries of other evidence], defendant waived his present contention
that [such summaries] should not have been admitted in[ ] evidence”
(People v Santos-Sosa, 233 AD2d 833, 833, lv denied 89 NY2d 988), and
he failed to preserve for our review his contention with respect to
the remaining summaries and the police department rule (see People v
Hogue, 133 AD3d 1209, 1210-1211). In any event, with respect to both
the summaries that were admitted upon consent and the remaining
summaries, the court did not err in allowing the prosecution to
introduce summaries of other documents that had been introduced into
evidence and previously provided to the defense, pursuant to the
“ ‘voluminous writings exception’ ” to the best evidence rule (Ed Guth
Realty v Gingold, 34 NY2d 440, 452; see People v Ash, 71 AD3d 688,
689, lv denied 14 NY3d 885; People v Weinberg, 183 AD2d 932, 934, lv
denied 80 NY2d 977). We further conclude that any error in the
admission of the evidence challenged by defendant on appeal is
harmless. The evidence of guilt is overwhelming, and there is no
significant probability that defendant would have been acquitted but
for the admission of the evidence in question (see generally People v
Crimmins, 36 NY2d 230, 241-242). Furthermore, “in a nonjury trial,
the court is presumed to be capable of disregarding any improper or
unduly prejudicial aspect of the evidence” (People v Wise, 46 AD3d
1397, 1399, lv denied 10 NY3d 872; see People v LoMaglio, 124 AD3d
1414, 1416, lv denied 25 NY3d 1203).
Contrary to defendant’s further contention, he was not denied
effective assistance of counsel. In order “[t]o prevail on a claim of
ineffective assistance, defendants must demonstrate that they were
deprived of a fair trial by less than meaningful representation; a
simple disagreement with strategies, tactics or the scope of possible
cross-examination, weighed long after the trial, does not suffice”
(People v Flores, 84 NY2d 184, 187). Defendant’s allegations of
ineffective assistance of counsel based on defense counsel’s failure
to object to the admission of the summaries discussed above are
without merit. Any objection to the admission of that evidence, as
discussed above, would have been fruitless because it was properly
admitted, and it is well settled that defense counsel’s “failure to
make a motion or [an objection] that has little or no chance of
success” does not constitute ineffective assistance of counsel (People
v Dashnaw, 37 AD3d 860, 863, lv denied 8 NY3d 945 [internal quotation
marks omitted]; see People v Wragg, 115 AD3d 1281, 1282, affd 26 NY3d
403). With respect to the remaining instances of allegedly
ineffective assistance of counsel claimed by defendant, in order to
prevail on such claims, “it is incumbent on defendant ‘to demonstrate
the absence of strategic or other legitimate explanations’ for defense
counsel’s allegedly deficient conduct” (People v Atkins, 107 AD3d
1465, 1465, lv denied 21 NY3d 1040, quoting People v Rivera, 71 NY2d
705, 709), and defendant failed to meet that burden with respect to
the claims raised here. We conclude with respect to all of
defendant’s claims concerning the alleged ineffective assistance of
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KA 12-01585
counsel that the evidence, the law, and the circumstances of this
case, viewed in totality and as of the time of the representation,
establish that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).
Defendant further contends that the sentence is excessive with
respect to the amount of restitution and the term of incarceration.
Addressing first defendant’s challenge to the amount of restitution,
we conclude that there is sufficient evidence in the record to support
a finding that the amount set by the court represents “the fruits of
the offense and the actual out-of-pocket loss to the victim caused by
the offense” (Penal Law § 60.27 [2]; see generally People v Hodge, 176
AD2d 1234, 1234, lv denied 78 NY2d 1127), with the exception of the
amount of compensation for lost interest. The evidence in the record
does not support the amount of compensation for lost interest, i.e.,
$10,000.00, but there is sufficient support in the record for an award
of $7,281.42 in lost interest. Consequently, we reduce the
restitution by the difference between those amounts, which yields a
total restitution amount of $56,336.87. Upon adding the 5% surcharge
to that amount, we modify the judgment by reducing the overall order
of restitution to $59,153.68 (see generally People v Bennett, 52 AD3d
1236, 1236, lv denied 11 NY3d 785).
Contrary to the People’s contention with respect to defendant’s
challenge to the term of incarceration, this Court’s “sentence-review
power may be exercised, if the interest of justice warrants, without
deference to the sentencing court” (People v Delgado, 80 NY2d 780,
783). “As a result, we may ‘substitute our own discretion for that of
a trial court which has not abused its discretion in the imposition of
a sentence’ ” (People v Johnson, 136 AD3d 1417, 1418, lv denied 27
NY3d 1134). Nevertheless, we conclude that the term of incarceration
is not unduly harsh or severe.
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court