Summary
This Appellate Division, Fourth Department opinion reviews a criminal conviction for rape in the second degree and endangering the welfare of a child. The court rejects the defendant's claims regarding the weight of the evidence, juror removal, failure to give an Allen charge, and ineffective assistance of counsel, finding them either unpreserved or without merit. While affirming the conviction and sentence, the court directs the trial court to redact inflammatory statements from the presentence report that reference criminal conduct for which the defendant was previously acquitted.
Topics
Practice areas
Questions Presented
- Whether the jury verdict is against the weight of the evidence.
- Whether the trial court erred in removing a juror.
- Whether the trial court erred in not giving an Allen charge.
- Whether the use of the term "rape kit" was preserved for review.
- Whether the persistent felony offender status is unduly harsh and severe.
- Whether the defendant was denied effective assistance of counsel on multiple grounds.
- Whether the presentence report must be redacted to remove statements about acquitted conduct.
Holdings
- The verdict is not against the weight of the evidence.
- The removal of the juror was not preserved for review and therefore not reversible.
- The failure to request an Allen charge was unpreserved and not subject to appellate review.
- The use of the term "rape kit" was not preserved for review.
- The persistent felony offender finding is not unduly harsh or severe.
- Defendant was not denied effective assistance of counsel on any of the asserted grounds.
- The lower court is directed to redact the identified statements from the presentence report.
Key quotations
“defendant's "history and character . . . and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest"”
“[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion or argument that has little or no chance of success”
“was inappropriate and inflammatory”
Factual background
The jury found the defendant guilty of rape in the second degree and endangering the welfare of a child based on DNA evidence and other testimony. The presentence report contained statements about alleged sexual offenses for which the defendant had been acquitted.
Procedural history
The Livingston County Court rendered a judgment on January 10, 2023, convicting the defendant by jury verdict of rape in the second degree and endangering the welfare of a child. The defendant appealed to the Appellate Division, Fourth Department.
Remand instructions
Livingston County Court is directed to redact the sentence on page 10 of the presentence report referring to a statement by the victim "that there could be another victim . . . who was inappropriately touched by [defendant]"; the quotation on page 10 from an investigator stating that defendant "'was having sexual intercourse with another underage female as well. High risk for children'"; and the sentence on page 12 referring to a disclosure that "[defendant] has been sexually assaulting [the other victim] since she was nine years old" from all copies of the presentence report.