         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
218
KA 09-01206
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT LAWRENCE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ROBERT LAWRENCE, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered May 13, 2009. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child 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 jury verdict of predatory sexual assault against a child (Penal
Law § 130.96) and endangering the welfare of a child (§ 260.10 [1]).
Defendant contends that he was denied his rights to due process and
equal protection when the People prosecuted him for predatory sexual
assault against a child rather than rape in the first degree (§ 130.35
[4]). Relying on Apprendi v New Jersey (530 US 466), defendant
further contends that he was denied his right to a trial by jury
because the prosecutor, and not the jury, decided that defendant
should be subjected to a greater penalty. Defendant’s contentions are
not preserved for our review (see generally People v Jackson, 71 AD3d
1457, 1458, lv denied 14 NY3d 888; People v Schaurer, 32 AD3d 1241),
and they are without merit in any event.

     The elements of rape in the first degree under subdivision (4) of
that statute are identical to the elements of predatory sexual assault
against a child (see Penal Law § 130.35 [4]; § 130.96; see also People
v Scott, 61 AD3d 1348, lv denied 12 NY3d 920, 13 NY3d 799). Predatory
sexual assault against a child is a class A-II felony, however, while
rape in the first degree is a class B felony. Where the elements of
two crimes overlap, the prosecutor has “broad discretion” to decide
which crime to charge (People v Urbaez, 10 NY3d 773, 775; see People v
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                                                         KA 09-01206

Eboli, 34 NY2d 281, 287). The fact that “under certain circumstances
the crimes of rape in the first degree and [predatory sexual assault
against a child] may be identical . . . does not . . . amount to a
denial of equal protection” or due process (People v Vicaretti, 54
AD2d 236, 239; see Eboli, 34 NY2d at 287-288). It is apparent that
the Legislature intended the more serious offense of predatory sexual
assault against a child to be charged where the rape occurs to a child
less than 13 years old and the defendant is at least 18 years old (see
Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39,
Penal Law § 130.00, at 82). Moreover, “the discretion to decide what
is an ‘exceptional’ case warranting prosecution for the lower degree[]
is entrusted to the prosecutor” (Eboli, 34 NY2d at 288), and we agree
with the People that this is not an exceptional case. In addition,
“[t]here was no Apprendi violation because [Supreme C]ourt did not
increase the penalty for the crime of which defendant had been
convicted based upon facts not found by the jury” (People v Adams, 50
AD3d 433, 433, lv denied 10 NY3d 955).

     We reject defendant’s contention that the evidence is legally
insufficient because of the uncertainty concerning the precise date on
which the crime occurred (see People v Alteri, 49 AD3d 918, 919-920;
see generally People v Bleakley, 69 NY2d 490, 495). In addition,
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 further contention that the verdict is against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495). Defendant
failed to preserve for our review his contention that he was denied a
fair trial based on the testimony of an expert with respect to child
sexual abuse accommodation syndrome (see People v Martinez, 68 AD3d
1757, 1757-1758, lv denied 14 NY3d 803), and in any event his
contention is without merit. “[E]xpert testimony regarding . . .
abused child syndrome . . . may be admitted to explain behavior of a
victim that might appear unusual or that jurors may not be expected to
understand” (People v Carroll, 95 NY2d 375, 387; see People v Taylor,
75 NY2d 277, 287-288). Here, the expert described specific behavior
that might be unusual or beyond the ken of a jury but did not give an
opinion concerning whether the abuse actually occurred (see
Martinez, 68 AD3d at 1758).

     Defendant contends that he was denied effective assistance of
counsel based on defense counsel’s failure to request that the court
charge rape in the first degree as a lesser included offense of
predatory sexual assault against a child. Where, as here, the
statutes contain identical language, it is for the court to determine
whether to charge the lesser offense based on a reasonable view of the
evidence, but such a charge “should be reserved for the ‘unusual
factual situation[,’ which is] not presented by the evidence here”
(People v Discala, 45 NY2d 38, 43). Thus, defense counsel was not
ineffective in failing to move for such a charge because any such
motion would have had “ ‘little or no chance of success’ ” (People v
Caban, 5 NY3d 143, 152). We have examined the remaining allegations
of ineffective assistance of counsel raised by defendant in the main
brief and pro se supplemental brief and conclude that they lack merit
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                                                        KA 09-01206

(see generally People v Baldi, 54 NY2d 137, 147). The sentence is not
unduly harsh or severe. We have considered defendant’s remaining
contentions in the main brief and conclude that they are without
merit.




Entered:   February 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
