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

369
KA 11-01117
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUKE J. WRIGHT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered May 24, 2011. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree (two
counts), predatory sexual assault, rape in the first degree, criminal
sexual act in the first degree, rape in the second degree, criminal
sexual act in the second degree, incest in the third degree, unlawful
imprisonment in the first degree as a hate crime and endangering the
welfare of an incompetent or physically disabled person.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reducing the conviction of assault in the
first degree (Penal Law § 120.10 [1]) under count 3 of the indictment
to assault in the second degree (§ 120.05 [2]), reducing the
conviction of unlawful imprisonment in the first degree as a hate
crime (§§ 485.05 [1] [b]; 135.10) under count 10 of the indictment to
unlawful imprisonment in the first degree (§ 135.10), and vacating the
sentences imposed on those counts, and by vacating the sentence
imposed for the conviction of rape in the second degree (§ 130.30 [2])
under count 7 of the indictment and as modified the judgment is
affirmed, and the matter is remitted to Erie County Court for
sentencing on the conviction of assault in the second degree and
unlawful imprisonment in the first degree and resentencing on the
conviction of rape in the second degree.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the first degree (two counts) (Penal
Law § 120.10 [1]); predatory sexual assault (§ 130.95 [1] [b]) with
aggravated sexual abuse in the first degree (§ 130.70 [1] [a]) as the
underlying crime; one count each of rape and criminal sexual act in
the first degree (§§ 130.35 [1]; 130.50 [1] [forcible compulsion]) and
rape and criminal sexual act in the second degree (§§ 130.30 [2];
                                 -2-                           369
                                                         KA 11-01117

130.45 [2] [mentally disabled victim]); incest in the third degree (§
255.25); unlawful imprisonment in the first degree as a hate crime (§§
135.10, 485.05 [1] [b]); and endangering the welfare of an incompetent
or physically disabled person (§ 260.25). We reject defendant’s
contention that County Court erred in determining after a hearing that
defendant was not an incapacitated person (see CPL 730.10 [1]). We
conclude that the prosecution met its burden of establishing by a
preponderance of the evidence that defendant possessed the capacity to
understand the nature of the proceedings against him and that he was
capable of assisting in his own defense (see People v Mendez, 1 NY3d
15, 19-20; People v Surdis, 77 AD3d 1018, 1018, lv denied 16 NY3d
800). Defendant was examined by two forensic psychiatrists, each of
whom concluded that defendant was competent to stand trial, and the
hearing court’s competency ruling is entitled to great deference (see
Surdis, 77 AD3d at 1018-1019; People v Brow, 255 AD2d 904, 904-905).
We reject defendant’s further contention that the court erred in
failing to reopen the competency hearing based upon the report
defendant’s psychologist issued following the hearing but based on the
result of his examinations of defendant prior to the hearing. We
recognize that the court has a continuing duty to inquire into a
defendant’s competency where facts arise during trial that indicate
that the defendant cannot understand the proceedings or assist in his
or her defense (see People v Taylor, 13 AD3d 1168, 1169, lv denied 4
NY3d 836). However, at the time defendant moved to reopen the
hearing, defense counsel indicated that he had not observed any change
in defendant during the course of his representation. Further,
defense counsel made no allegations indicating that there was any
change in defendant’s conduct after the initial hearing, and the court
had the opportunity during trial to observe defendant and his
interaction with counsel. Under these circumstances, we conclude that
the court did not abuse its discretion in refusing to reopen the
competency hearing (see People v Johnson, 52 AD3d 1040, 1042, lv
denied 11 NY3d 833). We note in any event that, during the trial the
court permitted defendant’s expert, over the objection of the
prosecutor, to testify that in his opinion defendant was not competent
to stand trial.

     Defendant failed to preserve for our review his contention that
his waiver of the right to be present at bench conferences during jury
selection was not knowingly, voluntarily and intelligently made (see
People v King, 234 AD2d 391, 391, lv denied 89 NY2d 986). In any
event, that contention has no merit. Defendant was apprised by the
court that it would not conduct bench conferences if he insisted on
being present, whereupon defendant expressly waived his right to be
present. We conclude that the waiver was knowingly, intelligently and
voluntarily made (see People v Cahill, 2 NY3d 14, 55-56; People v
Vargas, 88 NY2d 363, 375-378).

     Also contrary to defendant’s contention, the court properly
allowed the People to amend the indictment. The amendments did not
change the theory of the prosecution and did not “otherwise tend to
prejudice the defendant on the merits” (CPL 200.70 [1]; see People v
Brink, 31 AD3d 1139, 1140, lv denied 7 NY3d 865). Defendant’s
contention that certain photographs of the victim were inflammatory
                                 -3-                           369
                                                         KA 11-01117

and should not have been admitted in evidence lacks merit. The court
had broad discretion in determining whether the probative value of the
photographs outweighed any prejudice to defendant (see People v Law,
273 AD2d 897, 898, lv denied 95 NY2d 965). Here, the photographs were
relevant with respect to, inter alia, the nature and extent of the
injuries (see id.).

     Defendant failed to preserve for our review his further
contentions that his constitutional rights were violated by the use of
the recorded jailhouse telephone conversations between defendant and
others (see CPL 470.05 [2]), that his consent to provide a DNA sample
to the police was not valid (see People v Adger, 83 AD3d 1590, 1591,
lv denied 17 NY3d 857), and that he was denied a fair trial by
prosecutorial misconduct (see People v Rumph, 93 AD3d 1346, 1347, lv
denied 19 NY3d 967). 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]).

     By proceeding to trial and failing to raise an objection at trial
concerning the court’s alleged failure to rule on his request for
suppression of his January 22, 2009 statement to the police, defendant
abandoned any procedural challenge to that alleged failure (see People
v Nix, 78 AD3d 1698, 1699, lv denied 16 NY3d 799, cert denied ___ US
___, 132 S Ct 157; People v Anderson, 52 AD3d 1320, 1320-1321, lv
denied 11 NY3d 733). Even assuming, arguendo, that defendant was in
custody when he made one or more of his prearrest statements, we
conclude that the statements were made pursuant to valid waivers of
his Miranda rights (see People v Williams, 62 NY2d 285, 287-290; see
also People v Debo, 45 AD3d 1349, 1350, lv denied 10 NY3d 809).

     Defendant failed to preserve for our review his contention that
the conviction is not supported by legally sufficient evidence because
his motion for a trial order of dismissal was not specifically
directed at the grounds advanced on appeal and because he failed to
renew his motion after presenting evidence (see People v Roman, 85
AD3d 1630, 1630, lv denied 17 NY3d 821). Nevertheless, we exercise
our power to address that contention with respect to counts 3 and 10
of the indictment as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]), and we conclude that the evidence is legally
insufficient to support the conviction on those counts (see generally
People v Bleakley, 69 NY2d 490, 495).

     With respect to the third count of the indictment, charging
defendant with assault in the first degree (Penal Law § 120.10 [1]),
we agree with defendant that the evidence is legally insufficient to
support the serious physical injury element of the crime (see
generally People v Stewart, 18 NY3d 831, 832-833). We therefore
modify the judgment by reducing the conviction under count three to
assault in the second degree (§ 120.05 [2]; see People v Snyder, 294
AD2d 381, 382, lv denied 98 NY2d 702]), and we remit the matter to
County Court for sentencing on that conviction (see generally People v
Huntsman, 96 AD3d 1387, 1390, lv denied 20 NY3d 1099).
                                 -4-                           369
                                                         KA 11-01117

     With respect to count 10, charging defendant with unlawful
imprisonment in the first degree as a hate crime (Penal Law §§ 135.10,
485.05 [1] [b]), we agree with defendant that the evidence is legally
insufficient to support the hate crime element of the conviction.
While the victim’s disability may have provided the opportunity for
defendant to commit the crime of unlawful imprisonment, the People
failed to establish that defendant committed the “specified offense”
of unlawful imprisonment “in whole or in substantial part because of a
belief or perception regarding” such disability (§ 485.05 [1] [b]).
We therefore further modify the judgment by reducing the conviction
under count 10 to unlawful imprisonment in the first degree (§ 135.10;
cf. People v Ortiz, 48 AD3d 1112, 1112), and we remit the matter to
County Court for sentencing on that conviction as well (see generally
Huntsman, 96 AD3d at 1390). Based on our resolution of the legal
sufficiency issue with respect to counts 3 and 10, we do not address
defendant’s alternate contentions with respect to those counts.
Viewing the evidence in light of the elements of the remaining 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).

     As the People correctly concede, the indeterminate sentence
imposed on the conviction of rape in the second degree under count
seven is illegal (see Penal Law § 70.80 [1] [3]). We therefore
additionally modify the judgment by vacating the sentence imposed on
count seven, and we remit the matter to County Court for resentencing
on that count. We reject defendant’s contention that the imposition
of a five-year period of postrelease supervision on the conviction of
criminal sexual act in the second degree is illegal (see § 70.45 [2-a]
[d]). We reject the further contention of defendant that he was
denied effective assistance of counsel (see generally People v Caban,
5 NY3d 143, 152; People v Baldi, 54 NY2d 137, 147). Defendant’s
sentence is not unduly harsh or severe.

     We have reviewed defendant’s remaining contentions and conclude
that they are without merit.




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
