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

403
KA 08-01439
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

RICHARD G. KIRK, SR., DEFENDANT-APPELLANT.


SUGARMAN LAW FIRM, LLP, SYRACUSE (PAUL V. MULLIN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

RICHARD G. KIRK, SR., DEFENDANT-APPELLANT PRO SE.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (James W.
McCarthy, J.), rendered March 19, 2008. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the first
degree (4 counts), sexual abuse in the first degree (11 counts),
sexual abuse in the second degree (4 counts) and endangering the
welfare of a child (6 counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law and as a matter of discretion in the
interest of justice by reversing those parts convicting defendant of
endangering the welfare of a child under counts 11-14 and 35-36 of the
indictment and dismissing those counts and by reversing those parts
convicting defendant of criminal sexual act in the first degree under
counts 2-4, sexual abuse in the first degree under counts 5-6, 19-20,
22 and 24 and sexual abuse in the second degree under counts 7 and 26-
27 and dismissing those counts without prejudice to the People to re-
present any appropriate charges under those counts of the indictment
to another grand jury, and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of 4 counts of criminal sexual act in the first
degree (Penal Law § 130.50 [3], [4]), 11 counts of sexual abuse in the
first degree (§ 130.65 [3]), 4 counts of sexual abuse in the second
degree (§ 130.60 [2]), and 6 counts of endangering the welfare of a
child (§ 260.10 [1]). 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 reject defendant’s contention that the verdict is
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495). “[R]esolution of issues of credibility, as well as
the weight to be accorded to the evidence presented, are primarily
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                                                         KA 08-01439

questions to be determined by the jury . . ., and the testimony of the
[witnesses] with respect to the [disclosure of the sexual abuse] was
not so inconsistent or unbelievable as to render it incredible as a
matter of law” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13
NY3d 942 [internal quotation marks omitted]).

     We reject defendant’s further contention that County Court erred
in permitting testimony concerning child sexual abuse accommodation
syndrome (CSAAS) inasmuch as “[t]he expert witness who testified with
respect to CSAAS provided only a general explanation of the possible
behaviors demonstrated by a victim of child sexual abuse, and [she]
did not impermissibly offer an opinion on the issue whether defendant
had committed the sex crimes charged in the indictment” (People v
Wallace, 60 AD3d 1268, 1270, lv denied 12 NY3d 922; see People v
Carroll, 95 NY2d 375, 387). Contrary to defendant’s contention, we
conclude that the testimony of his accomplice, who was his girlfriend
and the mother of the victims, was sufficiently corroborated by other
evidence tending to connect defendant to the commission of the crimes
(see generally People v Reome, 15 NY3d 188, 191-192).

     Defendant also contends that his original defense counsel was
ineffective in failing to seek dismissal of counts 11-14 and 35-36 of
the indictment, charging him with endangering the welfare of a child,
as well as counts 25-28 of the indictment, charging him with sexual
abuse in the second degree, because those counts were time-barred.
Addressing first counts 25-28, we conclude that defendant’s contention
is academic to the extent that it is premised upon the failure of
original defense counsel to seek dismissal of counts 25 and 28
inasmuch as those counts were dismissed during trial. To the extent
that defendant’s contention is premised upon the failure of original
defense counsel to seek dismissal of counts 26 and 27, we conclude
that it involves matters outside the record on appeal and thus must be
raised by way of a motion pursuant to CPL article 440 (see People v
Peters, 90 AD3d 1507, 1508; see also CPL 30.10 [2] [c], [3] [f]).

      Addressing next counts 11-14 and 35-36, we note that the People
do not dispute that those counts are governed by a two-year statute of
limitations (see CPL 30.10 [2] [c]) and should have been dismissed as
time-barred. We therefore modify the judgment accordingly. Under the
circumstances of this case, however, we further conclude that
defendant was not thereby deprived of effective assistance of counsel
(see People v Wise, 49 AD3d 1198, 1200, lv denied 10 NY3d 940, 966).
To the extent that the contention of defendant in his pro se
supplemental brief that he was denied effective assistance of counsel
is based on matters outside the record on appeal, it must be raised by
way of a motion pursuant to CPL article 440 (see e.g. Peters, 90 AD3d
at 1508; People v McKnight, 55 AD3d 1315, 1317, lv denied 11 NY3d
927), and we conclude on the record before us that defendant received
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).

     We also conclude that there is no merit to the contention of
defendant in his main and pro se supplemental briefs that his
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                                                         KA 08-01439

indelible right to counsel had attached before he made statements to a
police investigator. “The indelible right to counsel attaches in two
situations: ‘upon the commencement of formal proceedings, whether or
not the defendant has actually retained or requested a lawyer . . . [,
and] where an uncharged individual has actually retained a lawyer in
the matter at issue or, while in custody, has requested a lawyer in
that matter’ ” (People v Foster, 72 AD3d 1652, 1653, lv dismissed 15
NY3d 750, quoting People v West, 81 NY2d 370, 373-374; see People v
Lopez, 16 NY3d 375, 380). Contrary to defendant’s contention, the
indelible right to counsel did not attach by virtue of an attorney-
client relationship defendant had in a Family Court proceeding at that
time. “[W]hile an attorney-client relationship formed in one criminal
matter may sometimes bar questioning in another matter in the absence
of [defense] counsel . . ., a relationship formed in a civil matter is
not entitled to the same deference” (People v Lewie, 17 NY3d 348, 361;
see Foster, 72 AD3d at 1653-1654). “We further conclude that the
determination of the court to credit the testimony of the police
officers that defendant did not invoke his right to counsel before
signing the [written statements in question] is entitled to deference
. . ., and we see no basis to disturb that determination” (People v
Alexander, 51 AD3d 1380, 1382, lv denied 11 NY3d 733; see generally
People v Prochilo, 41 NY2d 759, 761-762).

     We reject the further contention of defendant in his main brief
that his written statements to the police were involuntary and that
the court therefore erred in refusing to suppress them. “ ‘The
voluntariness of a confession is to be determined by examining the
totality of the circumstances surrounding the confession’ ” (People v
Camacho, 70 AD3d 1393, 1394, lv denied 14 NY3d 886, 887; see also
People v Kithcart, 85 AD3d 1558, 1559, lv denied 17 NY3d 818) and,
here, the record of the suppression hearing supports the court’s
determination that the statements at issue were not rendered
involuntary by reason of any alleged coercion by the police (see
People v Peay, 77 AD3d 1309, 1310, lv denied 15 NY3d 955; see
generally Prochilo, 41 NY2d at 761-762).

     Defendant’s remaining contentions are raised in his pro se
supplemental brief. Although defendant’s contention that the
indictment was duplicitous on its face is not preserved for our review
(see People v Becoats, 17 NY3d 643, 650-651), we nevertheless exercise
our power to review it as a matter of discretion in the interest of
justice (see People v Bracewell, 34 AD3d 1197, 1198). Counts 2-7, 19-
22, 24 and 26-27 of the indictment charged defendant with various
crimes and alleged that defendant committed one act “and/or” a second
act in furtherance of a single charge. We reject defendant’s
contention that those counts are duplicitous based on the language
“and/or” (see People v McGuire, 152 AD2d 945, 945, lv denied 74 NY2d
849). We conclude, however, that counts 2-7, 19-20, 22, 24 and 26-27
“were rendered duplicitous by the trial evidence tending to establish
the commission of [multiple] criminal acts during the time period[s]
specified [with respect to those counts]” (People v Bennett, 52 AD3d
1185, 1186, lv denied 11 NY3d 734; see generally People v Keindl, 68
NY2d 410, 417-418, rearg denied 69 NY2d 823). We therefore further
                                 -4-                           403
                                                         KA 08-01439

modify the judgment by reversing those parts convicting defendant of
criminal sexual act in the first degree under counts 2-4, sexual abuse
in the first degree under counts 5-6, 19-20, 22 and 24 and sexual
abuse in the second degree under counts 7 and 26-27 of the indictment
and dismissing those counts without prejudice to the People to
re-present any appropriate charges under those counts of the
indictment to another grand jury (see Bennett, 52 AD3d at 1186;
Bracewell, 34 AD3d at 1198-1199).

     To the extent that defendant preserved for our review his further
contention that the indictment gave unreasonably excessive time frames
for the alleged offenses (see generally People v Soto, 44 NY2d 683,
684), we conclude that it lacks merit. In view of the young ages of
the victims and what the record indicates was a delay of approximately
two years in reporting the crimes, the time periods specified in the
indictment with respect to the single-act crimes, i.e., criminal
sexual act in the first degree, sexual abuse in the first degree and
sexual abuse in the second degree, “provided defendant with adequate
notice of the charges against him to enable him to prepare a defense”
(People v Coapman, 90 AD3d 1681, 1682; see generally People v Morris,
61 NY2d 290, 295-296). Although we have dismissed the counts charging
defendant with endangering the welfare of a child, we note that
endangering the welfare of a child is a continuing crime (see People v
Furlong, 4 AD3d 839, 841, lv denied 2 NY3d 739), and thus “the usual
requirements of specificity with respect to time do not apply” to
those counts (People v Green, 17 AD3d 1076, 1077, lv denied 5 NY3d
789).

     Defendant’s contention that he was denied a preliminary hearing
is of no moment. “ ‘[T]here is no constitutional or statutory right
to a preliminary hearing . . ., nor is it a jurisdictional predicate
to indictment’ ” (People v Caswell, 56 AD3d 1300, 1302, lv denied 11
NY3d 923, 12 NY3d 781) and, even assuming, arguendo, that defendant
was denied a preliminary hearing, we conclude that the failure to hold
such a hearing does not require dismissal of the indictment or a new
trial (see People v Bensching, 117 AD2d 971, 972, lv denied 67 NY2d
939; see also People v Russ, 292 AD2d 862, lv denied 98 NY2d 713, 99
NY2d 539). In addition, there is no merit to the contention of
defendant that he was denied his right to testify before the grand
jury. Pursuant to CPL 190.50 (5) (a), a defendant “has a right to be
a witness in a grand jury proceeding . . . if, prior to the filing of
any indictment . . . in the matter, he serves upon the district
attorney of the county a written notice making such request . . . .”
“In order to preserve [that] right[] . . ., a defendant must assert
[it] at the time and in the manner that the Legislature prescribes”
(People v Bailey, 90 AD3d 1664, 1665 [internal quotation marks
omitted]). “The requirements of CPL 190.50 are to be ‘strictly
enforced’ ” (id.) and, here, we conclude that defendant did not invoke
his right to testify before the grand jury pursuant to that statute.
Defendant’s contention with respect to alleged juror misconduct
concerns matters outside the record on appeal and thus must be raised
by way of a motion pursuant to CPL article 440 (see generally People v
Carlisle, 50 AD3d 1451, 1451, lv denied 10 NY3d 957).
                                 -5-                          403
                                                        KA 08-01439

     Defendant’s further contention that he was deprived of a fair
trial based on prosecutorial misconduct is not preserved for our
review (see CPL 470.05 [2]). In any event, that contention lacks
merit. We agree with defendant that, “ ‘[i]n the face of a
prosecutor’s knowledge that a witness’[s] testimony denying that a
promise of leniency was given is false, he or she has no choice but to
correct the misstatement and to elicit the truth’ ” (People v
Hendricks, 2 AD3d 1450, 1451, lv denied 2 NY3d 762, quoting People v
Piazza, 48 NY2d 151, 162-163; see People v Morrice, 61 AD3d 1390,
1391). Here, however, there is no evidence that defendant’s
accomplice mischaracterized the terms of her plea agreement or that
the prosecutor elicited false testimony. Contrary to defendant’s
contention, the prosecutor did not impermissibly bolster the testimony
of prior witnesses in eliciting testimony from an expert witness with
respect to CSAAS. “[I]t is not uncommon for courts to permit expert
testimony on . . . the behavior of . . . victim[s] of sexual abuse”
(People v Jerge, 90 AD3d 1486, 1488), and the testimony of the expert
witness “was properly introduced to explain the hesitancy of child
abuse victims to disclose the abuse” (People v Donk, 259 AD2d 1018,
1019, lv denied 93 NY2d 924; see People v Staples, 61 AD3d 1418, 1418,
lv denied 13 NY3d 800). We conclude that there is no merit to
defendant’s contention with respect to the remaining alleged instance
of prosecutorial misconduct.

     “[D]efendant failed to preserve for our review his contention
that the sentence imposed constituted cruel and unusual punishment”
(People v Verbitsky, 90 AD3d 1516; see People v Rogers, 63 AD3d 1631,
lv denied 13 NY3d 745, 749; People v Clark, 61 AD3d 1426, 1427, lv
denied 12 NY3d 913). In any event, that contention is without merit
(see Verbitsky, 90 AD3d 1516). Finally, we have reviewed defendant’s
remaining contentions in his pro se supplemental brief and conclude
that they are without merit.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
