People v Hufnagle, 2024 NY Slip Op 04666 [230 AD3d 1546]

September 27, 2024

Appellate Division, Fourth Department

[*1]

The People of the State of New York, Respondent,

v

William L. Hufnagle, Appellant.

Keem Appeals, PLLC, Syracuse (Bradley E. Keem of counsel), for defendant-appellant.

Anthony J. DiMartino, Jr., District Attorney, Oswego (Amy L. Hallenbeck of counsel), for respondent.

Appeal from a judgment of the Oswego County Court (Karen M. Brandt Brown, J.), rendered May 3, 2022. The judgment convicted defendant, after a nonjury trial, of sexual abuse in the first degree (two counts) and endangering the welfare of a child.

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

Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) and one count of endangering the welfare of a child (§ 260.10 [1]). Initially, we conclude that defendant “ ’failed to preserve for our review his contention that he did not knowingly, voluntarily and intelligently waive the right to a jury trial inasmuch as he did not challenge the adequacy of his allocution with respect to the waiver’ ” ( People v Evans , 206 AD3d 1613 , 1614 [4th Dept 2022], lv denied 38 NY3d 1133 [2022]; see People v Barnett , 221 AD3d 1421 , 1422 [4th Dept 2023], lv denied 41 NY3d 964 [2024]). In any event, defendant’s contention lacks merit. The record establishes that defendant “ ’was advised of, understood and knowingly waived his right to a jury trial, after discussing it with counsel and signing a written waiver of jury trial in open court’ ” ( Evans , 206 AD3d at 1614; see generally People v Smith , 6 NY3d 827 , 828 [2006], cert denied 548 US 905 [2006]). Inasmuch as defendant’s mental competency was established by a CPL article 730 examination, there is “no reason to doubt his capacity to waive a jury trial” ( People v Sanchez , 201 AD3d 599 , 600 [1st Dept 2022], lv denied 38 NY3d 1009 [2022]; see People v Campos , 93 AD3d 581 , 582-583 [1st Dept 2012], lv denied 19 NY3d 971 [2012]).

Contrary to defendant’s contention, we conclude that the evidence, viewed in the light most favorable to the People ( see People v Delamota , 18 NY3d 107 , 113 [2011]), is legally sufficient to support the conviction ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). The sworn testimony of the minor victim that defendant inappropriately touched her vagina is legally sufficient to support the conviction of sexual abuse in the first degree ( see Penal Law § 130.65 [3]; People v Russell , 50 AD3d 1569 , 1569 [4th Dept 2008], lv denied 10 NY3d 939 [2008]; see also People v Scerbo , 74 AD3d 1730 , 1731-1732 [4th Dept 2010], lv denied 15 NY3d 757 [2010]), and “[b]ecause the evidence . . . [is] legally sufficient with respect to [defendant’s] conviction of sexual abuse, it necessarily also [is] legally sufficient with respect to the conviction of endangering the welfare of a child” ( Scerbo , 74 AD3d at 1732; see generally § 260.10 [1]).

Furthermore, viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley , 69 NY2d at 495). “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 Kouao , 177 AD3d 1335 , 1335 [4th Dept 2019], lv denied 34 NY3d 1160 [2020] [*2] [internal quotation marks omitted]; see People v McCoy , 100 AD3d 1422 , 1422 [4th Dept 2012]). Although a different verdict would not have been unreasonable ( see Danielson , 9 NY3d at 348), we see no basis to reject County Court’s credibility and weight determinations here ( see People v McMillian , 158 AD3d 1059 , 1061 [4th Dept 2018], lv denied 31 NY3d 1119 [2018]; People v Beauharnois , 64 AD3d 996 , 998-999 [3d Dept 2009], lv denied 13 NY3d 834 [2009]).

Defendant also contends that he was denied effective assistance of counsel. “ ’To prevail on his claim, defendant must demonstrate the absence of strategic or other legitimate explanations for [defense] counsel’s failure to pursue colorable claims’ ” ( People v Wills , 224 AD3d 1329 , 1330 [4th Dept 2024], lv denied 41 NY3d 1005 [2024]), and “ '[t]here can be no denial of effective assistance of . . . counsel arising from [defense] counsel’s failure to make a motion or argument that has little or no chance of success’ ” ( id . at 1331). Defendant’s mental competency had been previously established by a CPL article 730 examination, and thus defense counsel was not ineffective in failing to request a second examination, which would have had “little or no chance of success” ( People v Stultz , 2 NY3d 277 , 287 [2004], rearg denied 3 NY3d 702 [2004]); nor was defense counsel ineffective in failing to pursue a defense of mental disease or defect, which was not supported by the record ( see People v Hurlbert , 81 AD3d 1430 , 1430-1431 [4th Dept 2011], lv denied 16 NY3d 896 [2011]). Defendant’s argument that defense counsel was ineffective in failing to request an adjournment to allow him time to prepare, or obtain an expert to prepare, a sentencing memorandum lacks merit because defendant has not shown that defense counsel “could have articulated some [additional] basis for leniency” ( People v Adams , 247 AD2d 819, 819 [4th Dept 1998], lv denied 91 NY2d 1004 [1998]) or that “[an expert opinion] was available, that it would have assisted the [court] in its determination [and] that [defendant] was prejudiced by its absence” ( People v Englert , 130 AD3d 1532 , 1533 [4th Dept 2015], lvs denied 26 NY3d 967 [2015], 26 NY3d 1144 [2016] [internal quotation marks omitted]). Defendant’s argument that defense counsel should have requested an adjournment to ensure that defendant’s participation in the proceedings—including, inter alia, his decision to forgo a plea and his waiver of a jury trial—were knowing and voluntary “ ’implicates his relationship with his trial attorney and is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10’ ” ( People v Magnano , 158 AD2d 979, 979 [4th Dept 1990], affd 77 NY2d 941 [1991]; see People v Dallas , 119 AD3d 1362 , 1364 [4th Dept 2014], lv denied 24 NY3d 1083 [2014]).

Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Curran, Montour, Nowak and DelConte, JJ..