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

727
KA 10-00025
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AARON COLLINS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered April 24, 2009. The judgment convicted
defendant, upon a nonjury verdict, of predatory sexual assault against
a child and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the mandatory surcharge to
$250 and the crime victim assistance fee to $20 and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of predatory sexual assault against a child
(Penal Law § 130.96) and endangering the welfare of a child (§ 260.10
[1]). Contrary to the contention of defendant, his rights to due
process and equal protection were not denied when the People
prosecuted him for predatory sexual assault against a child rather
than rape in the first degree (§ 130.35 [4]; see People v Lawrence, 81
AD3d 1326, 1326-1327; People v Vicaretti, 54 AD2d 236, 239-240). “The
fact that ‘under certain circumstances the crimes of rape in the first
degree and [predatory sexual assault against a child] may be identical
. . . does not . . . amount to a denial of equal protection’ or due
process” (Lawrence, 81 AD3d at 1326), and we conclude that this is not
an exceptional case requiring the People to exercise their broad
discretion to charge the lesser crime (see id. at 1327; see generally
People v Urbaez, 10 NY3d 773, 775; People v Eboli, 34 NY2d 281,
287-288). We further conclude that Supreme Court properly denied
defendant’s request to consider criminal sexual act in the first
degree (§ 130.50 [4]) as a lesser included offense of predatory sexual
assault against a child (see generally People v Discala, 45 NY2d 38,
41-42; Lawrence, 81 AD3d at 1326-1327).

     Defendant failed to preserve for our review his contention that
                                 -2-                           727
                                                         KA 10-00025

Penal Law § 130.96 is unconstitutional (see People v Almarez, 19 AD3d
1005, lv dismissed 6 NY3d 773, amended on rearg 21 AD3d 1438, lv
denied 6 NY3d 752) and, in any event, the record does not establish
that the requisite notice was given to the Attorney General with
respect to that contention (see Executive Law § 71 [3]; Almarez, 19
AD3d 1005). The further contention of defendant that the court
violated Apprendi v New Jersey (530 US 466) is also unpreserved for
our review (see Lawrence, 81 AD3d at 1326; People v Phillips, 56 AD3d
1168, lv denied 11 NY3d 928). In any event, that contention is
without merit “ ‘because [the c]ourt did not increase the penalty for
the crime of which defendant had been convicted based upon facts’ ”
that it did not find (Lawrence, 81 AD3d at 1327).

     We reject defendant’s contention that the evidence is legally
insufficient to establish that he engaged in “ ‘[o]ral sexual
conduct’ ” (Penal Law § 130.00 [2] [a]; see § 130.50 [4]; see
generally People v Bleakley, 69 NY2d 490, 495). In addition, viewing
the evidence in light of the elements of the crimes in this nonjury
trial (see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
further contention that the verdict is against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495).

     Contrary to the contention of defendant, he was not denied a fair
trial based on ineffective assistance of counsel (see generally People
v Baldi, 54 NY2d 137, 147). “ ‘[D]efendant failed to demonstrate the
lack of a strategic basis for the decision [of defense counsel not] to
allow defendant to testify’ ” (People v Riley, 292 AD2d 822, 823, lv
denied 98 NY2d 640), as well as his decision not to call certain
witnesses to testify (see People v Roman, 60 AD3d 1416, 1417-1418, lv
denied 12 NY3d 928; see generally People v Benevento, 91 NY2d 708,
712). Defendant also failed to demonstrate the lack of a strategic
basis for defense counsel’s failure to make a written motion pursuant
to CPL 330.30 to set aside the verdict (see generally People v Conte,
71 AD3d 1448, 1449). “Contrary to defendant’s contention, defense
counsel’s comments at the sentencing hearing were neither adverse to
defendant’s position, nor amounted to defense counsel becoming a
witness against defendant” (People v Loret, 56 AD3d 1283, lv denied 11
NY3d 927; cf. People v Lawrence, 27 AD3d 1091). We have examined the
remaining allegations of ineffective assistance of counsel raised by
defendant and conclude that they lack merit. Viewing the evidence,
the law and the circumstances of this case in totality and as of the
time of the representation, we conclude that defense counsel provided
meaningful representation (see generally Baldi, 54 NY2d at 147).

     The sentence is not unduly harsh or severe. As the People
correctly concede, however, the mandatory surcharge and crime victim
assistance fee should have been based on the statute in effect at the
time of the crimes (see Penal Law § 60.35 [1] [a] [former (i)]; People
v Smith, 57 AD3d 1410, 1411). We therefore modify the judgment
accordingly.

Entered:   June 17, 2011                        Patricia L. Morgan
                                                Clerk of the Court
