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

718
KA 15-02030
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRENT M. STEINIGER, DEFENDANT-APPELLANT.


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

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Alex R.
Renzi, J.), rendered September 26, 2014. The judgment convicted
defendant, upon a nonjury verdict, of sexual abuse in the first degree
and endangering the welfare of a child.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon a nonjury verdict, of sexual abuse in the first degree (Penal Law
§ 130.65 [3]) and endangering the welfare of a child (§ 260.10 [1]).
Defendant failed to preserve for our review his challenge to the
sufficiency of County Court’s inquiry concerning his waiver of the
right to a jury trial (see People v Hailey, 128 AD3d 1415, 1415-1416,
lv denied 26 NY3d 929). In any event, defendant’s challenge is
without merit inasmuch as he “ ‘waived his right to a jury trial in
open court and in writing in accordance with the requirements of NY
Constitution, art I, § 2 and CPL 320.10 (2) . . . , and the record
establishes that [his] waiver was knowing, voluntary, and
intelligent’ ” (id. at 1416).

     Contrary to defendant’s contention, the court properly refused to
suppress statements that he made to the police. Even assuming,
arguendo, that defendant was in custody at the time he was questioned
by the police, we note that a police officer testified that he read
defendant his full Miranda rights from a Miranda card that was
introduced into evidence, and began discussing the subject incident
with defendant only after defendant indicated that he understood his
rights, but wanted to talk (see People v Lewis, 277 AD2d 1010, 1011,
lv denied 96 NY2d 736). Although defendant testified that the police
officer did not read him his full Miranda rights, the court was
entitled to credit the police officer’s testimony over that of
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                                                         KA 15-02030

defendant. “ ‘[W]here there are conflicting inferences to be drawn
from the proof, the choice of inferences is for the trier of the
facts[, a]nd that choice is to be honored unless unsupported, as a
matter of law’ ” (People v Semrau, 77 AD3d 1436, 1437, lv denied 16
NY3d 746). Contrary to defendant’s related contention, defendant
failed to meet his burden of establishing that his right to counsel
attached prior to questioning (see People v Castor, 128 AD3d 1357,
1358, lv denied 26 NY3d 927). Defense counsel’s testimony about the
timing of his telephone call to the police was equivocal, and the
court was entitled to credit the police officer’s testimony that
questioning ceased as soon as defense counsel “called the police
directly” (see People v McCray, 121 AD3d 1549, 1550, lv denied 25 NY3d
1204).

      Defendant failed to preserve for our review his challenge to the
legal sufficiency of the evidence with respect to the sexual
gratification element of sexual abuse inasmuch as he failed to renew
his motion for a trial order of dismissal after presenting evidence
(see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In
any event, defendant’s challenge lacks merit because “the element of
sexual gratification may be inferred from the sexual nature of
defendant’s actions” (People v Schroo, 87 AD3d 1287, 1289, lv denied
19 NY3d 977; see People v Chrisley, 126 AD3d 1495, 1496, lv denied 26
NY3d 1007). Furthermore, viewing the evidence in light of the
elements of the crimes in this nonjury trial (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).

     Defendant failed to preserve for our review his contention that
he was deprived of a fair trial by prosecutorial misconduct and, in
any event, that contention lacks merit. “In view of the intimate and
embarrassing nature of the crimes, we conclude that the court did not
abuse its discretion in allowing the prosecutor to ask the child
victim leading questions in this sexual abuse case” (People v Martina,
48 AD3d 1271, 1272, lv denied 10 NY3d 961 [internal quotation marks
omitted]). We further conclude that the prosecutor’s comments on
summation “were within the broad bounds of rhetorical comment
permissible in closing arguments” (People v McClean, 137 AD3d 940,
941, lv denied 27 NY3d 1135).

     We reject defendant’s further contention that he was denied
effective assistance of counsel. “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” (People v Alexander, 109
AD3d 1083, 1085). Furthermore, defendant was not denied effective
assistance of counsel based on his attorney’s failure to object to the
prosecutor’s use of leading questions on direct examination of the
victim. The prosecutor’s questioning was proper, in light of the age
of the victim and “particularly in view of the intimate and
embarrassing nature of the crime[s]” (People v Cordero, 110 AD3d 1468,
1470, lv denied 22 NY3d 1137 [internal quotation marks omitted]), and
defense counsel was not ineffective for failing to make an objection
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                                                         KA 15-02030

that had little or no chance of success (see People v Caban, 5 NY3d
143, 152; People v Horton, 79 AD3d 1614, 1616, lv denied 16 NY3d 859).
Lastly, inasmuch as we have concluded that the evidence is legally
sufficient to support the conviction, defense counsel’s failure to
renew his motion for a trial order of dismissal does not amount to
ineffective assistance (see People v Washington, 60 AD3d 1454, 1455,
lv denied 12 NY3d 922; see generally People v Baldi, 54 NY2d 137,
147).

     Defendant’s contention relating to the court’s reliance at
sentencing on information not contained in the record is unpreserved
for our review (see People v Cooper, 136 AD3d 1397, 1398, lv denied 27
NY3d 1067), and we decline to exercise our power to address it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Finally, we reject defendant’s challenge to the severity of the
sentence.




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
