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

212
KA 12-00794
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRANDON M. PULVINO, 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 (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered November 30, 2011. The judgment convicted
defendant, upon a nonjury verdict, of criminal sexual act in the first
degree and attempted aggravated sexual abuse in the third degree (two
counts).

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

     Memorandum: Defendant appeals from a judgment convicting him,
after a nonjury trial, of criminal sexual act in the first degree
(Penal Law § 130.50 [3]) and two counts of attempted aggravated sexual
abuse in the third degree (§§ 110.00, 130.66 [1] [c]). Defendant
contends that the prosecutor engaged in misconduct during the grand
jury proceedings by permitting the three victims to testify before the
grand jury notwithstanding their lack of testimonial capacity (see
generally CPL 60.20). Defendant failed to preserve that contention
for our review (see People v Walker, 50 AD3d 1452, 1453, lv denied 11
NY3d 795, reconsideration denied 11 NY3d 931), and we decline to
exercise our power to review it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Insofar as defendant
contends that County Court erred in denying, or in declining to rule
on, his motion to dismiss the indictment on the ground that the
victims lacked the capacity to testify under oath at the grand jury,
we note that “[d]efendant was convicted ‘upon legally sufficient trial
evidence,’ and thus his contention with respect to the competency of
the evidence before the grand jury ‘is not reviewable upon an appeal
from the ensuing judgment of conviction’ ” (People v Haberer, 24 AD3d
1283, 1284, lv denied 7 NY3d 756, reconsideration denied 7 NY3d 848,
quoting CPL 210.30 [6]; see People v Paul, 48 AD3d 833, 834, lv denied
10 NY3d 868; People v Carpenter, 35 AD3d 1092, 1093).
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                                                         KA 12-00794

     Contrary to defendant’s contention, the court did not abuse its
discretion in permitting the two younger victims to provide sworn
testimony at trial. Those victims, who were seven and eight years
old, demonstrated that they understood the nature of an oath, i.e.,
that they “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
Alexander, 109 AD3d 1083, 1084; People v Feldt, 198 AD2d 788, 789; see
generally People v Hetrick, 80 NY2d 344, 349; People v Nisoff, 36 NY2d
560, 565-566). We reject defendant’s contention that the court failed
to rule on his request to preclude the two younger victims from
testifying. To the contrary, the record establishes that the court
individually questioned both of those victims and expressly ruled that
they would be permitted to testify under oath.

     Defendant further contends that the court erred in denying his
request to preclude all three victims from giving sworn testimony
because they lacked a basic religious education and because they were
improperly coached by the prosecution. We reject that contention.
Contrary to defendant’s contention, the witnesses’ lack of religious
education is not a proper basis upon which to refuse to permit them to
testify under oath (see People v Cordero, 257 AD2d 372, 375, lv denied
93 NY2d 968). We reject defendant’s further contention that the
prosecutor committed misconduct in the form of witness coaching (see
generally Perry v Leeke, 488 US 272, 282). “There was no
nonspeculative evidence of any improper influence exerted on th[ose]
witness[es]” (People v Thompson, 59 AD3d 1115, 1116, lv denied 12 NY3d
860 [internal quotation marks omitted]; see People v Kemp, 251 AD2d
1072, 1072, lv denied 92 NY2d 900; see also People v Montalvo, 34 AD3d
600, 601, lv denied 8 NY3d 883; People v Nickel, 14 AD3d 869, 870-871,
lv denied 4 NY3d 834).

     Defendant further contends that he was denied effective
assistance of counsel because of a litany of alleged errors, including
defense counsel’s failure to move to dismiss the indictment on
constitutional speedy trial grounds. It is well settled that “[t]here
can be no denial of effective assistance of trial counsel arising from
counsel’s failure to ‘make a motion or argument that has little or no
chance of success’ ” (People v Caban, 5 NY3d 143, 152, quoting People
v Stultz, 2 NY3d 277, 287). It is also well settled that, in
determining whether there has been an unconstitutional delay in
commencing a prosecution, the factors to be considered are “(1) the
extent of the delay; (2) the reason for the delay; (3) the nature of
the underlying charge; (4) whether or not there has been an extended
period of pretrial incarceration; and (5) whether or not there is any
indication that the defense has been impaired by reason of the delay”
(People v Taranovich, 37 NY2d 442, 445; see People v Decker, 13 NY3d
12, 14-15). Although no one factor is determinative, “the extent of
the delay . . . is of critical importance because ‘all other factors
being equal, the greater the delay the more probable it is that the
accused will be harmed thereby’ ” (People v Romeo, 12 NY3d 51, 56,
quoting Taranovich, 37 NY2d at 445). Here, the 21-month delay in
presenting the matter to a grand jury was not unconstitutionally
excessive (see generally Decker, 13 NY3d at 15-16; People v Gaston,
                                 -3-                           212
                                                         KA 12-00794

104 AD3d 1206, 1206-1207; People v Rogers, 103 AD3d 1150, 1151, lv
denied 21 NY3d 946; People v Green, 52 AD3d 1263, 1264, lv denied 11
NY3d 788), and defendant failed to identify any prejudice arising from
that delay. Thus, a motion to dismiss the indictment on such grounds
had little or no chance of success. We also reject defendant’s
remaining allegations of ineffective assistance of counsel and
conclude that “the evidence, the law, and the circumstances of [this]
particular case, viewed in totality and as of the time of the
representation, reveal that the attorney provided meaningful
representation” (People v Baldi, 54 NY2d 137, 147).

     We reject defendant’s contention that the court abused its
discretion in denying his motion in which he sought to be adjudicated
a youthful offender. Pursuant to CPL 720.10 (3) (i), a youth who is
convicted of, inter alia, aggravated sexual abuse or first-degree
criminal sexual act is ineligible for a youthful offender adjudication
unless the court concludes, insofar as relevant here, that there are
“mitigating circumstances that bear directly upon the manner in which
the crime was committed” (see CPL 720.10 [2] [a] [iii]; People v
Fields, 287 AD2d 577, 578, lv denied 97 NY2d 681; People v Victor J.,
283 AD2d 205, 206-208, lv denied 96 NY2d 94). Here, defendant failed
to introduce any evidence that such mitigating circumstances exist
(see People v Parker, 67 AD3d 1405, lv denied 15 NY3d 755; People v
Terry, 19 AD3d 1039, 1040, lv denied 5 NY3d 833), and “[t]hus,
defendant was not eligible to be adjudicated a youthful offender”
(People v Lugo, 87 AD3d 1403, 1405, lv denied 18 NY3d 860).

     Defendant failed to preserve for our review his further
contention that the duration of the orders of protection issued in
connection with the judgment exceed the statutory maximum (see People
v Nieves, 2 NY3d 310, 315-317), and we decline to exercise our power
to review it as a matter of discretion in the interest of justice (see
People v Childres, 60 AD3d 1278, 1279, lv denied 12 NY3d 913). The
sentence is not unduly harsh or severe.




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