Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered July 15, 2014, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child and incest in the first degree.
In November 2013, defendant was indicted and charged with predatory sexual assault against a child and incest in the first degree. The charges stemmed from allegations that defendant,
Defendant initially contends that the verdict was not supported by legally sufficient evidence and, further, was against the weight of the evidence. Specifically, defendant asserts that the People failed to establish both his familial relationship with the victim and their respective ages at the time of the alleged offenses. Defendant further argues that the victim was not a credible witness and, therefore, the convictions cannot stand. We disagree.
As relevant here, “[a] person is guilty of predatory sexual assault against a child when, being [18] years old or more, he or she commits the crime of. . . course of sexual conduct against a child in the first degree . . . , and the victim is less than [13] years old” (Penal Law § 130.96). In this regard, “[a] person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration ... he or she, being [18] years old or more, engages in two or more acts of sexual conduct, which include at least one act of. . . oral sexual conduct. . . , with a child less than [13] years old” (Penal Law § 130.75 [1] [b]). Oral sexual conduct, in turn, includes “contact between the mouth and the penis” (Penal Law § 130.00 [2] [a]).
A person is guilty of incest in the first degree when, insofar as is relevant here, “he or she commits the crime of . . . criminal sexual act in the first degree . . . against a person whom he or she knows to be related to him or her . . . as a[ ] . . . brother or sister of either the whole or half blood” (Penal Law § 255.27). A person commits the crime of criminal sexual act in the first degree when he or she, among other things, “engages in oral sexual conduct . . . with another person . . . [w]ho is less than [13] years old and the actor is [18] years old or more” (Penal Law § 130.50 [4]). Consistent with the provisions of Penal Law § 255.30 (2), “[a] person shall not be convicted of incest . . . solely upon the testimony of the other party unsupported by other evidence tending to establish . . . that the defendant was a relative of the other party.”
Defendant’s primary argument — that the People failed to es
As to the balance of defendant’s challenge to the verdict rendered, defendant essentially contends that the victim’s testimony was too vague and/or inconsistent to be worthy of belief. Again, we disagree. As a starting point, the mere fact that the victim, who was relatively young when defendant began subjecting her to oral sexual conduct, could not precisely recall the dates or times when that conduct occurred or what defendant was wearing on a particular occasion does not warrant setting aside the verdict as against the weight of the evidence (see People v Monroe, 134 AD3d 1138, 1140 [2015]). The victim established a temporal range during which the conduct occurred, and her testimony was clear as to the specific acts to which defendant — on multiple occasions — subjected her. Although the victim admitted that she initially failed to disclose and/or denied that defendant abused her, she explained the circumstances surrounding her actions in this regard, and her credibility was fully vetted by defense counsel on cross-examination (see id. at 1140; People v Brown, 114 AD3d 1017, 1018-1019 [2014]). In short, upon reviewing the victim’s testimony and defendant’s written statement, we are satisfied that the verdict is supported by legally sufficient evidence and, further, is in accord with the weight of the evidence.
With respect to County Court’s Molineux ruling, which
We also find no merit to defendant’s ineffective assistance of counsel claim. “To prevail on such a claim, defendant must demonstrate both that his attorney failed to provide meaningful representation and the absence of strategic or other legitimate explanations for counsel’s allegedly deficient conduct” (People v Bullock, 145 AD3d 1104, 1106 [2016] [internal quotation marks, brackets, ellipsis and citations omitted]). “The test is reasonable competence, not perfect representation” (People v Oathout, 21 NY3d 127, 128 [2013] [internal quotation marks and citation omitted]), and “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” (People v Fiorino, 130 AD3d 1376, 1381 [2015] [internal quotation marks and citations omitted], lv denied 26 NY3d 1087 [2015]). Here, the record reflects that defense counsel engaged in appropriate motion practice, articulated cogent opening and closing statements, fully explored the victim’s credibility on cross-examination and, when warranted, made viable evidentiary objections. Under these circumstances, we are satisfied that defendant received meaningful representation.
Finally, we find no merit to defendant’s claim that the
Ordered that the judgment is affirmed.
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This testimony establishes that the victim was born in November 1997, which is entirely consistent with defendant’s acknowledgment that, as of the date of his May 2013 written statement, the victim was 15 years old.