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

827
KA 08-00648
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYREE ALEXANDER, DEFENDANT-APPELLANT.


O’CONNELL AND ARONOWITZ, ALBANY (STEPHEN R. COFFEY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered December 16, 2005. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(two counts) and endangering the welfare of a child (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts each of sexual abuse in the first
degree (Penal Law § 130.65 [3]) and endangering the welfare of a child
(§ 260.10 [1]). Contrary to defendant’s contention, he was not denied
his constitutional right to proceed pro se. Defendant sought to
proceed pro se because he believed that his assigned counsel did not
spend enough time both with him and in researching the case. After
County Court ordered defense counsel to spend the afternoon with
defendant preparing for trial, defendant did not again seek to proceed
pro se. We conclude that defendant’s request to proceed pro se was
made in the context of a claim expressing his dissatisfaction with his
attorney and was not unequivocal (see People v Gillian, 8 NY3d 85, 88;
People v Caswell, 56 AD3d 1300, 1301-1302, lv denied 11 NY3d 923,
reconsideration denied 12 NY3d 781). “In any event, . . . defendant
abandoned his request by subsequently acting in a manner indicating
his satisfaction with counsel” (People v Jackson, 97 AD3d 693, 694, lv
denied 20 NY3d 1100; see Gillian, 8 NY3d at 88).

     Defendant’s contention that the court erred in allowing the
seven-year-old victim to give sworn testimony is not preserved for our
review (see People v Dickens, 48 AD3d 1034, 1034-1035, lv denied 10
NY3d 958). In any event, the court did not abuse its discretion in
admitting that testimony inasmuch as the witness demonstrated
sufficient intelligence and capacity, and further demonstrated that
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                                                         KA 08-00648

she understood the nature of an oath, i.e., she “appreciate[d] the
difference between truth and falsehood, the necessity for telling the
truth, and the fact that a witness who testifies falsely may be
punished” (CPL 60.20 [2]; see People v Beckwith, 289 AD2d 956, 958,
amended on rearg 303 AD2d 1054; see generally People v Nisoff, 36 NY2d
560, 565-566). The court properly determined that the presumption of
incompetency was overcome (see People v Hetrick, 80 NY2d 344, 349;
People v Morales, 80 NY2d 450, 452-453; People v Schroo, 87 AD3d 1287,
1289, lv denied 19 NY3d 977).

     Defendant next contends that the evidence is legally insufficient
to establish that he had sexual contact with the victim. Defendant
failed to preserve that contention for our review inasmuch as he
failed to renew his motion for trial order of dismissal after
presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678). In any event, that contention lacks merit (see
generally People v Bleakley, 69 NY2d 490, 495). Further, 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).

     We reject the contention of defendant that he received
ineffective assistance of counsel. Defendant failed to establish the
absence of a strategic reason for defense counsel’s failure to
exercise any challenges during voir dire (see generally People v
Benevento, 91 NY2d 708, 712; People v Turck, 305 AD2d 1072, 1073, lv
denied 100 NY2d 566). Defendant also failed to establish the absence
of a strategic reason for defense counsel’s failure to call any
witnesses at the Huntley hearing, or any witnesses other than
defendant at trial (see generally Benevento, 91 NY2d at 712).
Inasmuch as the court did not abuse its discretion in permitting the
victim to testify, defense counsel’s failure to object to the
admission of that testimony cannot be considered ineffective
assistance of counsel (see People v Stultz, 2 NY3d 277, 287, rearg
denied 3 NY3d 702; People v Crump, 77 AD3d 1335, 1336, lv denied 16
NY3d 857). Contrary to defendant’s contention, the record establishes
that defense counsel adequately cross-examined the witnesses at trial
and presented a cogent defense. In fact, we note that defense
counsel’s cross-examination of the witnesses raised some
inconsistencies in their testimony, and defendant relies on those
inconsistencies in contending that the verdict is against the weight
of the evidence. Defendant failed to establish the absence of a
strategic reason for the fact that defense counsel did not move for a
mistrial or seek a curative instruction after an outburst by the
mother of the victim during the testimony of the victim’s sister (see
generally Benevento, 91 NY2d at 712). Inasmuch as a motion for a
mistrial would have had “little or no chance of success,” defense
counsel’s failure to seek that relief cannot be considered ineffective
assistance (Stultz, 2 NY3d at 287).

     Finally, the sentence is not unduly harsh or severe, particularly
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                                                          KA 08-00648

in light of defendant’s past criminal conduct.




Entered:   September 27, 2013                    Frances E. Cafarell
                                                 Clerk of the Court
