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

586
KA 12-00930
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MATHEW J. ANGONA, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (COURTNEY E. PETTIT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (William D.
Walsh, A.J.), rendered March 8, 2010. The judgment convicted
defendant, upon a jury verdict, of sodomy in the first degree (four
counts).

     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 four counts of sodomy in the first degree
(Penal Law former § 130.50 [3]). Contrary to defendant’s contention,
the People were not required to charge the defense of infancy to the
grand jury, and the grand jury proceedings therefore were not rendered
defective by the failure to charge that defense (see generally CPL
210.20 [1] [c]; 210.35 [5]; People v Huston, 88 NY2d 400, 411). There
is no requirement “that the [g]rand [j]ury must be charged with every
potential defense suggested by the evidence” (People v Valles, 62 NY2d
36, 38). Rather, the People must charge “only those defenses that the
evidence will reasonably support,” and here the evidence did not
reasonably support such a defense (People v Coleman, 4 AD3d 677, 678;
cf. People v Calkins, 85 AD3d 1676, 1677). Contrary to defendant’s
further contention, we conclude that County Court did not abuse its
discretion in denying defendant’s request to file a late notice of
alibi (see generally People v Brock, 277 AD2d 1008, 1008).
Defendant’s request was substantively inadequate because it failed to
identify the place or places where defendant claims to have been at
the time in question, and the names, the residential addresses, the
places of employment and the addresses thereof of every alibi witness
upon whom he intended to rely (see CPL 250.20 [1]). Defendant failed
to preserve for our review his contention that the indictment was
fatally defective because it lacked sufficient specificity to enable
him to prepare a defense (see People v Erle, 83 AD3d 1442, 1443, lv
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denied 17 NY3d 794). In any event, defendant’s contention lacks
merit. The time frame set forth in the indictment, i.e., “during the
months of September or October 2001,” was sufficiently specific in
view of the nature of the offenses and the age of the victim at the
time of the indicted acts (see People v Roman, 43 AD3d 1282, 1283, lv
denied 9 NY3d 1009; cf. People v Sedlock, 8 NY3d 535, 540).

     Defendant failed to preserve for our review his further
contentions that the court violated CPL 270.15 (2) in conducting the
jury selection (see People v Davis, 106 AD3d 1510, 1511, lv denied 21
NY3d 1073), and that the court erred in failing sua sponte to reopen
the suppression hearing (see People v Clark, 28 AD3d 1231, 1232;
People v Freeman, 253 AD2d 692, 692, lv denied 92 NY2d 982). We
decline to exercise our power to review those contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant’s contention that the evidence is legally insufficient to
support the conviction is also not preserved for our review because
defendant failed to renew his motion for a trial order of dismissal
after presenting proof (see People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678). In any event, defendant’s contention, based upon
the victim’s alleged lack of credibility, is without merit (see
generally People v Black, 38 AD3d 1283, 1285, lv denied 8 NY3d 982).
Furthermore, viewing the evidence in light of the elements of the
crime 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 People v Bleakley, 69 NY2d 490, 495).

      We reject defendant’s further contention that he was deprived of
effective assistance of counsel based on, inter alia, defense
counsel’s failure to challenge a prospective juror who expressed a
concern that, because she had grandchildren, she might sympathize with
the victim. The prospective juror further stated without equivocation
that she could follow the court’s instructions to render a verdict
free from sympathy to anyone (see generally People v Noguel, 93 AD3d
1319, 1320, lv denied 19 NY3d 965). We also reject defendant’s
contention that he was denied effective assistance of counsel based on
defense counsel’s failure to renew the motion for a trial order of
dismissal (see People v Pytlak, 99 AD3d 1242, 1243, lv denied 20 NY3d
988). It is well settled that defense counsel cannot be deemed
ineffective for failing to “make a motion or argument that has little
or no chance of success” (People v Stultz, 2 NY3d 277, 287, rearg
denied 3 NY3d 702; see People v Caban, 5 NY3d 143, 152). Contrary to
defendant’s further contention, defense counsel’s failure to object to
the brief reference to defendant’s prior incarceration did not deprive
him of effective assistance of counsel (see People v Joseph, 68 AD3d
1534, 1537, lv denied 14 NY3d 889, cert denied ___ US ___, 131 S Ct
797).

     We reject the further contention of defendant that he was
deprived of his right to a fair trial by prosecutorial misconduct.
The prosecutor’s description of the defense theory as a “ruse” was
within the wide rhetorical bounds afforded the prosecutor (cf. People
v Walker, ___ AD3d ___, ___ [July 11, 2014]; see generally People v
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                                                         KA 12-00930

Ashwal, 39 NY2d 105, 109-110). Even assuming, arguendo, that during
opening or closing statements the prosecutor’s use of the phrase
“little boy” or “young boy” to describe the victim was improper, we
conclude that such conduct was not so egregious as to deprive
defendant of a fair trial (see People v Cordero, 110 AD3d 1468, 1470,
lv denied 22 NY3d 1137). Defendant contends that the prosecutor
improperly suggested to the jury during summation that it was
“plausible” that the victim became a sex offender later in life based
on defendant’s perpetration of the indicted acts. The court sustained
defense counsel’s objections to the prosecutor’s remarks and
instructed the jury to disregard them. Defendant did not thereafter
request further curative instructions or move for a mistrial, and thus
failed to preserve for our review his present contention that the
prosecutor’s conduct deprived him of a fair trial (see CPL 470.05 [2];
People v Norman, 1 AD3d 884, 884, lv denied 1 NY3d 599). We decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     We likewise reject defendant’s contention that he was penalized
for exercising his right to a jury trial. There is no indication that
the sentence imposed was the product of vindictiveness or that the
court placed undue weight upon defendant’s decision to reject a
favorable plea bargain and proceed to trial (see People v Smith, 21
AD3d 1277, 1278, lv denied 7 NY3d 763).

     Finally, defendant’s sentence is not unduly harsh or severe. In
reaching that conclusion, we note that, inasmuch as each of
defendant’s four crimes was a separate and distinct act, defendant
faced the possibility of consecutive sentences aggregating 100 years,
albeit reduced pursuant to Penal Law § 70.30 (see People v Arroyo, 93
NY2d 990, 992; People v Cruz, 41 AD3d 893, 897, lv denied 10 NY3d
933). The court properly exercised its discretion in sentencing
defendant to concurrent sentences aggregating 25 years. That sentence
appropriately takes into account the heinous nature of defendant’s
conduct (see Cruz, 41 AD3d at 897). As the dissent correctly notes,
defendant “self-reported” the crimes. However, when he testified at
trial, defendant recanted, denying that the crimes ever occurred and
asserting that his inculpatory statements were fabricated by the
police and that he was subjected to beatings at the police station.
These claims were rejected by the jury. It is well settled that a
sentencing court may consider a defendant’s prior offenses—including
those resulting in a youthful offender adjudication (see People v
Brunner, 182 AD2d 1123, 1123, lv denied 80 NY2d 828; People v Sapp,
169 AD2d 659, 660, lv denied 77 NY2d 966). In this case, defendant
had a prior youthful offender adjudication for the sexual abuse of an
eight-year-old male. Although the dissent correctly observes the
disparity between the plea offer and the sentence, it is well
established that “[t]he mere fact that a sentence imposed after trial
is greater than that offered in connection with plea negotiations is
not proof that defendant was punished for asserting his right to
trial” (People v Simon, 180 AD2d 866, 867, lv denied 80 NY2d 838). We
also note that new facts and circumstances defendant presented to the
court through his trial testimony, after the original plea offer, such
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                                                         KA 12-00930

as his perjurious testimony and lack of genuine remorse, rebutted any
presumption of vindictiveness arising from the imposition of the
increased sentence after trial (see People v Ocampo, 52 AD3d 741, 742,
lv denied 11 NY3d 792).

     All concur except CENTRA and LINDLEY, JJ., who dissent in part and
vote to modify in accordance with the following Memorandum: We
respectfully dissent in part. Although we agree with the majority
that defendant’s conviction of four counts of sodomy in the first
degree should stand, we conclude that the sentence imposed by County
Court is unduly harsh and severe. We would therefore exercise our
power to modify the sentence as a matter of discretion in the interest
of justice (see CPL 470.15 [6] [b]), and we would modify the judgment
by reducing the four concurrent terms of incarceration imposed from 25
years to 15 years, to be followed by the five-year period of
postrelease supervision (PRS) imposed by the court.

     Defendant committed the crimes when he was 16 years old. If the
crimes had been committed six months earlier, defendant, due to his
infancy, could not have been charged criminally and would thus have
faced no prison time. Defendant self-reported his crimes to the
police approximately eight years after they were committed, stating
that he wanted to get something off his chest and clear his
conscience. If defendant had not gone to the police himself, he
likely would never have been charged, inasmuch as the victim had not
disclosed the abuse to anyone. This may explain why, prior to
indictment, the People offered defendant the opportunity to plead
guilty to a reduced sex offense with a sentence promise of four months
in jail and 10 years of probation. On the eve of trial, the People
offered a plea deal involving a two-year sentence. After trial, he
was sentenced to an aggregate term of imprisonment of 25 years plus
five years of PRS.

     We understand that a defendant who rejects a plea offer with a
specific sentence promise cannot expect to receive that same sentence
after trial. We also recognize that defendant’s conduct in this case
was reprehensible and that he is a danger to the community if he is at
large. Nevertheless, “the considerable disparity between the sentence
offered prior to trial and that ultimately imposed after trial strikes
us as too extreme a penalty for defendant’s exercise of his
constitutional right to a jury trial” (People v Morton, 288 AD2d 557,
559, lv denied 97 NY2d 758, cert denied 537 US 860; see People v
Riback, 57 AD3d 1209, 1218, revd on other grounds 13 NY3d 416; see
also People v Cruz, 41 AD3d 893, 896-897, lv denied 10 NY3d 933).

     We note that the People do not assert that the trial revealed any
facts that were unknown to them when the plea offers were extended to
defendant. We also note that, although defendant’s rejection of the
plea offers resulted in the victim having to testify at trial, the
victim was 18 years old when the last offer was extended and was
himself a convicted felon serving time in state prison. Thus, unlike
in many sexual assault cases involving child victims, there was not a
compelling need to shield the victim from testifying at trial. While
we are mindful that defendant deserves a lengthy sentence due to the
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                                                         KA 12-00930

heinous nature of his conduct and his refusal to accept
responsibility, we nevertheless conclude that concurrent determinate
terms of imprisonment of 15 years plus five years of PRS is more
appropriate than the 25-year concurrent sentences imposed by the
court.




Entered:   July 11, 2014                        Frances E. Cafarell
                                                Clerk of the Court
