Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.), rendered January 28, 2009, upon a verdict convicting defendant of the crimes of criminal sexual act in the first degree, criminal sexual act in the second degree (three counts), rape in the second degree (three counts), criminal sexual act in the third degree (five counts), endangering the welfare of a child (two counts), unlawfully dealing with a child in the first degree (two counts) and sexual abuse in the third degree.
A jury convicted defendant of nine counts pertaining to his sexual abuse of a young female (born in 1991) during the summer of 2005 and eight counts pertaining to his abuse of a second victim (born in 1991) during the summer and fall of 2007. County Court imposed an aggregate sentence of 212/3 to 35 years in prison followed by 20 years of postrelease supervision. On defendant’s appeal, we uphold the jury’s determination of guilt but remit for resentencing on certain counts.
The verdict was not against the weight of the evidence. The first victim testified regarding specific instances when defendant supplied her with alcohol, touched her breasts and vagina, performed oral sex on her, had anal sex with her, engaged in sexual intercourse with her and had her perform oral sex on him. Regarding the last act, she testified that he used force on one occasion. She was 13 and 14 years old when defendant committed these acts against her. The second victim testified that defendant supplied her with alcohol, touched her vagina and engaged in oral sex with her on multiple occasions when she was 16 years old. Defendant testified that he never supplied alcohol to and never engaged in any sexual contact with either victim. Several defense witnesses testified that defendant was never alone with either victim. Defendant also testified that he was impotent but his girlfriend, who did not meet him until 2006, testified that while he was unable to sustain an erection some times he could obtain one at other times. Although each of the victims admitted that she had previously lied in regard to her sexual contact with defendant, with one of the victims falsely implicating another individual as the person with whom she had sex, most of the defense witnesses had credibility problems as well. Upon weighing the proof, and giving deference to the jury’s resolution of witness credibility, we find that the weight of the evidence supported the jury’s verdict (see People v Hebert, 68 AD3d 1530, 1531-1532 [2009]).
County Court did not abuse its discretion in denying defend
Defendant was initially indicted in December 2007 and was represented by retained counsel. Due to a conflict of interest, counsel withdrew shortly before a scheduled trial date. In June 2008, when defendant was arraigned on a superceding indictment, he was represented by counsel who was apparently retained for the limited purpose of appearing at arraignment. In July 2008, defendant appeared without counsel and requested an adjournment for the purpose of retaining counsel. He made a similar request by letter in August 2008. County Court granted both requests, emphasizing that defendant needed to obtain counsel because a trial was scheduled for October 2008. At a September 2008 appearance, defendant stated that he desired to retain counsel but was having difficulty doing so. The court directed him to return in several days to discuss the possibility of representation by the Public Defender. At the appearance a few days later, defendant was represented by the Public Defender. At the Public Defender’s request, the October trial date was adjourned to November 2008 to provide additional time to prepare.
At an appearance four days prior to the scheduled trial date, defendant expressed his displeasure with his representation and stated his desire to retain private counsel. County Court determined that no conflict warranted disqualification of the Public Defender and felt that defendant’s request for new counsel was an attempt to delay the trial. Defendant countered that his financial situation prevented him from retaining counsel, but noted his attempts to hire several attorneys and that he could hire counsel within a week. Noting that defendant
County Court granted defendant repeated adjournments to allow him to retain counsel. The court admonished defendant at each step that counsel would be extremely helpful and should be retained at the earliest possible time. Defendant claimed that his inability to hire counsel was due to his financial situation and thereby beyond his control but the court disagreed, noting that defendant was not incarcerated and had not demonstrated that he lacked the ability to earn money to pay an attorney. The court properly exercised its discretion in denying defendant’s request for an adjournment to retain new counsel on the eve of trial considering that defendant had been granted several adjournments for that purpose over the prior five months and did not establish a compelling reason for failing to hire counsel in that time period (see People v Nelson, 1 AD3d 796, 797-798 [2003], lv denied 1 NY3d 631 [2004]; People v Williams, 167 AD2d 491, 492 [1990], lv denied 77 NY2d 845 [1991]; People v Teen, 165 AD2d 931 [1990]).
Defendant received the effective assistance of counsel. Part of his argument concerning the Public Defender’s failure to adequately prepare for trial is based on defendant’s self-serving statements or information outside the record, which we cannot rely upon. The Public Defender and two assistants performed work on defendant’s case. Counsel filed a comprehensive omnibus motion that resulted in the severance of one count of the indictment and a hearing regarding possible dismissal on
While defendant contends that counsel erred in failing to introduce medical evidence of defendant’s impotence, counsel talked to defendant’s physician and determined that he had not treated defendant for impotency.* Although defendant had complained of impotency to his physician, counsel could have reasonably determined that introducing medical records would be unhelpful because they showed that defendant made this complaint after he had been indicted. Testimony concerning defendant’s impotence was elicited from defendant’s girlfriend, tending to show that the victims were untruthful and defendant could not have engaged in some of the alleged acts. Counsel vigorously cross-examined the victims, zealously argued to introduce additional evidence, and called fact and character witnesses to testify. Considering the entirety of the record, and despite defendant’s complaints to the contrary, the Public Defender provided defendant with meaningful representation (see People v Towndrow, 62 AD3d 1028, 1032 [2009], lv denied 13 NY3d 750 [2009]).
County Court erred in imposing illegal sentences on certain counts. For the counts concerning the first victim, the court imposed sentences—concurrent to each other but consecutive to the sentences for the counts pertaining to the second victim—of one year for endangering the welfare of a child, one year for unlawfully dealing with a child in the first degree, seven years
For the counts concerning the second victim, County Court imposed consecutive sentences of one year for endangering the welfare of a child, one year for unlawfully dealing with a child in the first degree, three months for sexual abuse in the third degree, and l⅓ to 4 years for each of five counts of criminal sexual act in the third degree. For each count of criminal sexual act in the third degree, the court was required to impose a determinate sentence and include a period of postrelease supervision (see Penal Law § 70.80 [1], [3]). We remit for the court to impose a proper sentence on those counts. Because defendant’s sexual contact with the victim and providing her with alcohol constituted elements of endangering the welfare of a child, the court should have imposed the sentence for endangering the welfare of a child to run concurrently with the other counts (see Penal Law § 70.25 [2]; People v Black, 65 AD3d 811, 816 [2009], lv denied 13 NY3d 905 [2009]).
Peters, J.E, Rose and Egan Jr., JJ., concur; Lahtinen, J., not taking part.
Ordered that the judgment is modified, on the law, by directing that the sentence on count one of the indictment shall run concurrently with the sentences on counts two through eight and by vacating the sentences imposed on counts 3, 4, 5, 6, 7, 10, 11, 12, 13, 15, 16, 17; matter remitted to the County Court of Warren County for resentencing on those 12 counts; and, as so modified, affirmed.
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We recognize that the trial was underway before counsel talked to defendant’s physician, but the timing of that conversation does not affect its substance.