        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

954
KA 13-00457
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

SKIPPY B. WOOLSON, DEFENDANT-APPELLANT.


BRUCE R. BRYAN, SYRACUSE, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered February 7, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the second
degree (four counts) and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, four counts of criminal sexual act
in the second degree (Penal Law § 130.45 [1]). Shortly before the
trial was scheduled to begin, defense counsel requested an adjournment
of the trial on the ground that he was too ill to try the case.
County Court initially denied the request and resolved certain
pretrial matters, but then adjourned the trial. On appeal, defendant
contends that the court abused its discretion in denying the initial
request for an adjournment. It is well settled that the “granting of
an adjournment for any purpose is a matter of discretion for the trial
court” (People v Singleton, 41 NY2d 402, 405; see People v Spears, 64
NY2d 698, 699-700; People v Green, 74 AD3d 1899, 1900-1901, lv denied
15 NY3d 852), and a “ ‘court’s exercise of discretion in denying a
request for an adjournment will not be overturned absent a showing of
prejudice’ ” (People v Aikey, 94 AD3d 1485, 1486, lv denied 19 NY3d
956; see People v Bones, 50 AD3d 1527, 1528, lv denied 10 NY3d 956;
see generally People v Dashnaw, 37 AD3d 860, 862-863, lv denied 8 NY3d
945). Here, we conclude that defendant failed to establish that he
was prejudiced by the initial denial of defense counsel’s request for
an adjournment. We reject defendant’s contention that the court was
required to hold the matter in abeyance pursuant to CPLR 321 (c).
Even assuming, arguendo, that the statute applies to criminal
proceedings (cf. CPL 1.10; People v Silva, 122 AD2d 750, 750), there
is no indication in the record that defense counsel was “physically or
mentally incapacitated” (CPLR 321 [c]).
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                                                         KA 13-00457

     Defendant further contends that he was denied effective
assistance of counsel based upon several acts or omissions on the part
of defense counsel. “To prevail on a claim of ineffective assistance
of counsel, it is incumbent on defendant to demonstrate the absence of
strategic or other legitimate explanations” for defense counsel’s
allegedly deficient conduct (People v Rivera, 71 NY2d 705, 709; see
People v Benevento, 91 NY2d 708, 712-713), and defendant failed to
make such a demonstration here. With respect to defendant’s claim
that defense counsel was ineffective for failing to produce an expert
witness to rebut the expert testimony introduced by the People,
defendant has not established that such expert “testimony was
available, that it would have assisted the jury in its determination
or that he was prejudiced by its absence” (People v West, 118 AD3d
1450, 1451 [internal quotation marks omitted]; see Aikey, 94 AD3d at
1487). With respect to defendant’s claim that defense counsel was
ineffective for failing to make certain motions, it is well settled
that an attorney’s “failure to ‘make a motion or argument that has
little or no chance of success’ ” does not amount to ineffective
assistance (People v Caban, 5 NY3d 143, 152, quoting People v Stultz,
2 NY3d 277, 287), and we conclude that defendant’s claims of
ineffectiveness involve motions that had virtually no chance of
success. Defendant’s remaining claims concerning ineffective
assistance of counsel “involve[] matters outside the record on appeal,
and thus the proper procedural vehicle for raising [those] claim[s] is
by way of a motion pursuant to CPL 440.10” (People v Wilson, 49 AD3d
1224, 1225, lv denied 10 NY3d 966; see People v Hall, 50 AD3d 1467,
1469, lv denied 11 NY3d 789). Viewing the evidence, the law and the
circumstances of this case, in totality and as of the time of the
representation, we conclude that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).

     Defendant’s motion for a trial order of dismissal was not
specifically directed at the grounds advanced on appeal, and thus he
failed to preserve for our review his challenge to the legal
sufficiency of the evidence (see People v Gray, 86 NY2d 10, 19). In
any event, we conclude that the evidence is legally sufficient to
support the conviction (see generally People v Bleakley, 69 NY2d 490,
495). In addition, viewing the evidence in light of the elements of
the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). “Resolution of
issues of credibility, as well as the weight to be accorded to the
evidence presented, are primarily questions to be determined by the
jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]), and “those who see and hear the
witnesses can assess their credibility and reliability in a manner
that is far superior to that of reviewing judges who must rely on the
printed record” (People v Lane, 7 NY3d 888, 890). Contrary to the
dissent’s conclusion that a possible discrepancy in the date of the
offense requires a different verdict, “any inconsistencies in the
testimony of the victim with respect to the date[] of [the] crime[]
merely presented a credibility issue for the jury to resolve” (People
v Furlong, 4 AD3d 839, 841, lv denied 2 NY3d 739). Furthermore, we
respectfully disagree with the dissent’s reliance upon the
                                 -3-                              954
                                                            KA 13-00457

circumstances under which the victim disclosed the abuse as a reason
to reject his testimony. The People produced expert testimony
establishing that victims of sexual abuse often, as part of the sexual
abuse accommodation syndrome, exhibit a “delayed, conflicted and
unconvincing disclosure” of the abuse, which would explain the
circumstances upon which the dissent relies. Thus, although a
different verdict would not have been unreasonable, it cannot be said
that the jury failed to give the evidence the weight it should be
accorded (see generally Bleakley, 69 NY2d at 495).

     Finally, the sentence is not unduly harsh or severe.

     All concur except FAHEY, J., who dissents and votes to reverse in
accordance with the following Memorandum: I respectfully dissent.
Although I agree with the majority with respect to the other issues
raised on appeal, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), I conclude that the verdict is against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495). I
therefore would reverse the judgment, dismiss the indictment, and
remit the matter to County Court for proceedings pursuant to CPL
470.45.

      I agree with defendant that, given the combination of the
victim’s mental illness, his past false accusation of similar sexual
abuse, his motivation to lie, and the timing of his accusation against
defendant, this is one of those rare cases in which we should conclude
that the jury failed to give the evidence the weight it should be
accorded (see People v Goff, 68 AD3d 1796, 1796-1797; People v
Wallace, 306 AD2d 802, 802-803; see generally Bleakley, 69 NY2d at
495). Here, the record establishes that the victim has a history of
mental illness and an inability to control his behavior. The victim’s
history also includes one false accusation of sexual abuse, which is
remarkably similar to the accusation made in this case. Further, the
victim’s testimony that the abuse continued to occur into April 2011
while the victim’s mother was working for defendant’s aunt is at odds
with the testimony of defendant’s aunt that the victim’s mother
stopped working for her on March 25, 2011. Moreover, the victim’s
stated desire to have defendant leave the home in which the victim
lived with the victim’s mother, coupled with the suspicious and self-
serving timing of the accusation, leads to the conclusion that the
victim’s testimony is “impossible of belief” (Wallace, 306 AD2d at
802).

     Indeed, the record establishes that the victim claimed to have
been sexually abused by defendant nearly every day between late
December 2010 and approximately April 11, 2011. On April 11, 2011,
the victim held a knife to the throat of a developmentally challenged
youth during the theft of the youth’s bicycle. After that incident,
defendant punched the victim and gave the victim a black eye. The
victim, in turn, “flipped out” and punched a wall after the victim’s
mother sided with defendant in a dispute about the punch. Sometime
between April 11, 2011 and April 13, 2011 the victim left the home
shared by defendant and the victim’s mother and entered a placement.
                                 -4-                           954
                                                         KA 13-00457

On April 13, 2011, the victim refused to leave that placement to
return to the home shared by defendant and the victim’s mother. The
next day, the victim accused defendant of assaulting him, telling an
Oswego County mental health worker that he was “sick of [defendant],”
did not want to live with him, and “want[ed] him arrested.” On April
15, 2011, the victim was sent to a different facility for a
psychiatric evaluation and, while at that facility on April 16, 2011,
he told staff that defendant had punched him, but he did not disclose
any sexual abuse. On April 18, 2011, defendant told staff that he did
not want to return home because defendant had punched him, and only
later that day did the victim disclose the alleged sexual abuse to his
sister. Defendant’s conviction hinged on the testimony of the victim
and, given the foregoing flaws in that evidence, I cannot agree with
the majority that the jury was “justified in finding . . . defendant
guilty beyond a reasonable doubt” (Danielson, 9 NY3d at 348).




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
