People v. Moss

200 A.D.3d 1662

159 N.Y.S.3d 784

The PEOPLE of the State of New York, Respondent,

v.Dwight MOSS, Defendant-Appellant.

925

KA 17-00230

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 23, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT.

DWIGHT MOSS, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence, and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon a nonjury verdict of, inter alia, sexual abuse in the first degree ( Penal Law § 130.65 [3] ), defendant contends in his main brief that County Court erred in allowing the victim to testify about a prior, uncharged incident of sexual abuse allegedly perpetrated by defendant inasmuch as that testimony was not relevant to absence of mistake, to motive, or as background information (see generally People v. Molineux , 168 N.Y. 264, 293, 61 N.E. 286 [1901] ; People v. Workman , 56 A.D.3d 1155, 1156, 868 N.Y.S.2d 430 [4th Dept. 2008], lv denied 12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100 [2009] ). Defendant failed to preserve his contention for our review inasmuch as he did not raise it before the trial court (see People v. Case , 197 A.D.3d 985, 987, 153 N.Y.S.3d 331 [4th Dept. 2021] ). In any event, we conclude that the court properly allowed the victim to testify about the earlier incident of alleged abuse because it is relevant to the absence of mistake (see People v. Chrisley , 126 A.D.3d 1495, 1495, 8 N.Y.S.3d 511 [4th Dept. 2015], lv denied 26 N.Y.3d 1007, 20 N.Y.S.3d 548, 42 N.E.3d 218 [2015] ; People v. Gonzalez , 62 A.D.3d 1263, 1265, 878 N.Y.S.2d 534 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ). Here, it was alleged that defendant "pinched" and "rubbed" the seven-year-old victim's vagina while participating in a "tickle fight" with her and her brothers. It would be reasonable to infer based on the victim's testimony concerning that event alone that any inappropriate touching of the victim was a mistake or was accidental. Evidence that defendant had touched the victim inappropriately on a prior occasion while playing with her and her brothers would tend to show that his conduct was not accidental, and thus, the evidence of the prior, alleged incident was "relevant to establish the absence of mistake or accident, as well as intent" ( Gonzalez , 62 A.D.3d at 1265, 878 N.Y.S.2d 534 ).

Contrary to defendant's contentions in his pro se supplemental brief, we conclude that the conviction is supported by legally sufficient evidence (see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and, upon viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we further conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Contrary to the further contention in defendant's main and pro se supplemental briefs, viewing the evidence, the law, and the circumstances of this case in totality and as of the time of representation, we conclude that defendant received effective assistance of counsel (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).

Defendant further contends in his pro se supplemental brief that the court erred in sentencing him as a second child sexual assault felony offender without holding a hearing. We agree. Because defendant did not controvert the existence of the predicate conviction of course of sexual conduct against a child in the second degree, it was incumbent upon him "to allege and prove facts to establish his claim that the conviction was unconstitutionally obtained" ( People v. Konstantinides , 14 N.Y.3d 1, 15, 896 N.Y.S.2d 284, 923 N.E.2d 567 [2009] ; see CPL 400.19 ; see also People v. Farmer , 136 A.D.3d 1410, 1413, 25 N.Y.S.3d 505 [4th Dept. 2016], lv denied 28 N.Y.3d 1027, 45 N.Y.S.3d 379, 68 N.E.3d 108 [2016] ). Here, defendant stated that the court in the prior proceeding coerced him into pleading guilty to a reduced charge by threatening...