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

922
KA 11-01287
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RALPH N. WILLIAMS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Richard
C. Kloch, Sr., A.J.), rendered May 20, 2011. The judgment convicted
defendant, upon a nonjury verdict, of rape in the first degree, rape
in the second degree and endangering the welfare of a child.

     It is hereby ORDERED that the appeal from the judgment insofar as
it imposed sentence is unanimously dismissed and the judgment is
otherwise affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a nonjury trial of rape in the first degree
(Penal Law § 130.35 [1]), rape in the second degree (§ 130.30 [1]),
and endangering the welfare of a child (§ 260.10 [1]). In appeal No.
2, defendant appeals from the resentence imposed for that conviction.

     In appeal No. 1, we conclude that defendant failed to preserve
for our review his contention that the evidence is legally
insufficient to support the convictions of rape in the first degree
and rape in the second degree inasmuch as his motion for a trial order
of dismissal was not “ ‘specifically directed’ at the alleged error”
asserted on appeal (People v Gray, 86 NY2d 10, 19). 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). “Great deference is to be
accorded to the fact[]finder’s resolution of credibility issues based
upon its superior vantage point and its opportunity to view witnesses,
observe demeanor and hear the testimony” (People v Aikey, 94 AD3d
1485, 1486, lv denied 19 NY3d 956 [internal quotation marks omitted];
see People v Mosley, 59 AD3d 961, 962, lv denied 12 NY3d 918,
reconsideration denied 13 NY3d 861). Here, Supreme Court credited the
                                 -2-                           922
                                                         KA 11-01287

victim’s testimony, and we see no basis for disturbing that
determination (see People v Maxwell, 103 AD3d 1239, 1240, lv denied 21
NY3d 945).

     We reject defendant’s contention that he was denied the right to
effective assistance of counsel based on defense counsel’s performance
during the cross-examination of prosecution witnesses. That
contention involves “a simple disagreement with strategies, tactics or
the scope of possible cross-examination, weighed long after the trial”
(People v Flores, 84 NY2d 184, 187), and “[s]peculation that a more
vigorous cross-examination might have [undermined the credibility of a
witness] does not establish ineffectiveness of counsel” (People v
Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922 [internal quotation
marks omitted]; see generally People v Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s further contention, the court properly
denied his request for the victim’s counseling records and the records
from other criminal proceedings concerning unrelated crimes committed
against the victim. “The court determined following an in camera
inspection of the victim’s counseling records that they did not relate
to the crimes committed by defendant” (Bassett, 55 AD3d at 1437).
Additionally, the contentions raised by defendant with respect to his
request for records “concerned information that would be used to
impeach the victim’s general credibility[,]” and thus the request was
properly denied (People v Reddick, 43 AD3d 1334, 1335, lv denied 10
NY3d 815; see generally People v Gissendanner, 48 NY2d 543, 548).
Defendant failed to preserve for our review his contention that the
order of protection issued by the court does not comport with CPL
530.13 (see People v Nieves, 2 NY3d 310, 315-317), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).

     With respect to appeal No. 2, we conclude that the sentence
imposed at resentencing is not unduly harsh or severe. We note,
however, that the certificate of conviction incorrectly reflects that
defendant’s resentence on the count of rape in the second degree
included a seven-year period of postrelease supervision. The
certificate of conviction must therefore be amended to reflect that
the resentence did not include any postrelease supervision for that
count inasmuch as the sentence imposed with respect to that count was
for an indeterminate term of incarceration of 3½ to 7 years (see Penal
Law § 70.45 [1]; see generally People v Anderson, 79 AD3d 1738, 1739,
lv denied 16 NY3d 856).




Entered:   October 4, 2013                      Frances E. Cafarell
                                                Clerk of the Court
