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

857
KA 14-00695
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAUL S. TURLEY, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

PAUL S. TURLEY, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered May 10, 2013. The judgment convicted defendant,
upon a jury verdict, of course of sexual conduct against a child in
the first degree, course of sexual conduct against a child in the
second degree and sexual abuse in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of course of sexual conduct against a child in
the first degree (Penal Law § 130.75 [1] [a]), course of sexual
conduct against a child in the second degree (§ 130.80 [1] [a]), and
sexual abuse in the first degree (§ 130.65 [1]).

     Contrary to defendant’s contention, viewing the evidence in light
of the elements of the crimes as charged to the jury, we conclude that
the verdict is not against the weight of the evidence (see People v
Danielson, 9 NY3d 342, 349; see generally People v Bleakley, 69 NY2d
490, 495). The victims testified to specific details about
defendant’s multiple acts of sexual conduct with them between August
1996 and June 1998, when they were between the ages of five and seven
years old. One of the victims also testified to an act of sexual
abuse by defendant when she was 12 years old. During a recorded
telephone conversation with one of the victims, defendant made
inculpatory statements (see People v Smith, 126 AD3d 1528, 1529).
When that victim asked defendant about why he sexually abused her,
defendant responded, inter alia, that “I was misguided in thinking
that it was something you wanted,” and that “I know it was wrong, and
                                 -2-                           857
                                                         KA 14-00695

I was trying to show you love in a way that you shouldn’t have been
shown.”

     We reject defendant’s contention that he was denied effective
assistance of counsel inasmuch as defense counsel’s conduct did not
constitute “ ‘egregious and prejudicial’ error such that defendant did
not receive a fair trial” (People v Benevento, 91 NY2d 708, 713).
Defendant contends that he was denied effective assistance of counsel
because defense counsel arguably opened the door to allow the People
to present evidence that the testimony of one of the victims had not
been tailored to come within the statute of limitations. That
contention is without merit inasmuch as the prosecutor did not present
any inculpatory evidence as a result of defense counsel’s questions.
In any event, County Court provided the jury with a curative
instruction that required the jury not to speculate with respect to
matters that occurred outside of the time frame set forth in the
indictment. Inasmuch as the jury is presumed to have followed the
court’s curative instruction, we conclude that the curative
instruction sufficiently alleviated any prejudice to defendant (see
People v O’Neal, 38 AD3d 1305, 1307, lv denied 9 NY3d 848; People v
Ware, 28 AD3d 1124, 1125, lv denied 7 NY3d 852). Defendant further
contends that he was prejudiced by defense counsel’s statement on
summation that one of the witnesses, who is not listed as a victim in
the indictment, “didn’t say she was abused.” We reject that
contention inasmuch as the court sustained the prosecutor’s timely
objection and, after argument at the bench outside of the presence of
the jury, struck defense counsel’s statement from the record.
Furthermore, after summations, the court granted the prosecutor’s
request for a curative instruction ordering the jury not to speculate
about what may have happened to people other than the two victims
listed in the indictment. The jury is presumed to have followed that
curative instruction as well, thereby alleviating any prejudice to
defendant (see O’Neal, 38 AD3d at 1307; Ware, 28 AD3d at 1125).

     Defendant further contends that defense counsel was ineffective
for advising him to abscond on the ground that he would not receive a
fair trial. The facts upon which that contention is based are outside
of the record on appeal, and the contention “must therefore be raised
by way of a motion pursuant to CPL article 440 or an application
seeking other [postconviction] relief” (People v Washington, 122 AD3d
1406, 1406; see People v Ocasio, 81 AD3d 1469, 1470, lv denied 16 NY3d
898, cert denied ___ US ___, 132 S Ct 318). We reject defendant’s
further contention that defense counsel’s failure to file a motion to
set aside the verdict constitutes ineffective assistance of counsel
inasmuch as defendant failed to “establish that the motion, if made,
would have been successful” (People v Peterson, 19 AD3d 1015, 1016, lv
denied 6 NY3d 851). We have reviewed the remaining instances of
alleged ineffective assistance of counsel raised by defendant and
conclude that he received meaningful representation (see generally
People v Baldi, 54 NY2d 137, 147).

     We reject the contention raised in defendant’s pro se
supplemental brief that the indictment was unconstitutionally vague
because the counts for course of sexual conduct in the first and
                                 -3-                              857
                                                            KA 14-00695

second degree failed to provide fair notice of when the offending
conduct occurred. We conclude that the indictment was sufficiently
specific inasmuch as “[t]he period of [less than] two years alleged in
the indictment was sufficient to give defendant adequate notice of the
charges to enable him to prepare a defense, to ensure that the crimes
for which he was tried were in fact the crimes with which he was
charged, and to protect [his] right not to be twice placed in jeopardy
for the same conduct” (People v McLoud, 291 AD2d 867, 868, lv denied
98 NY2d 678 [internal quotation marks omitted]).

     Contrary to defendant’s further contention in his pro se
supplemental brief, count one of the indictment for course of sexual
conduct against a child (Penal Law § 130.75 [1] [a]) is not time-
barred by the statute of limitations set forth in CPL 30.10 (3) (f).
The charges in the indictment occurred between August 1996 and 1998,
not 1994 as alleged by defendant. The trial testimony of the victims
established that the crimes occurred during the period set forth in
the indictment, and there is no evidence that the victims lied with
respect thereto.

     Defendant further contends in his pro se supplemental brief that
he was denied a fair trial with an impartial jury. During the trial,
the court observed that “there were just some jurors perhaps out in
the rotunda” in the vicinity of lawyers who may have been talking to a
camera operator working for the press. The court responded by issuing
a “gag order,” stating “no more contact between lawyers and the press
. . .” Defendant’s contention that the court should have conducted a
voir dire in response to its observations is not properly raised on
this appeal inasmuch as that contention raises matters outside the
record concerning what a voir dire would have revealed (see generally
People v Piermont, 180 AD2d 830, 830, lv denied 79 NY2d 1006; People v
Robinson, 159 AD2d 598, 598). The issue is thus outside the record
and “must therefore be raised by way of a motion pursuant to CPL
article 440 or an application seeking other [postconviction] relief”
(Washington, 122 AD3d at 1406).

     Defendant also contends in his pro se supplemental brief that he
was denied a fair trial because one of the jurors revealed that she
often stayed overnight in Genesee County, but that she still slept at
her legal address in Niagara County several nights per week. We
conclude that such objection to the juror was waived inasmuch as
defendant did not move to remove the juror on that ground (see CPL
470.05 [2]; People v Clark, 255 AD2d 241, 241, lv denied 93 NY2d 898;
see also People v Cosmo, 205 NY 91, 100-101).

     Finally, the sentence is not unduly harsh or severe.




Entered:   July 10, 2015                        Frances E. Cafarell
                                                Clerk of the Court
