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

70
KA 14-01695
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SEAN VICKERS, ALSO KNOWN AS SEAN M. VICKERS, ALSO
KNOWN AS SEAN MICHAEL VICKERS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered September 11, 2014. The judgment convicted
defendant, upon a jury verdict, of sodomy in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and the amended indictment is
dismissed without prejudice to the People to re-present any
appropriate charges to another grand jury.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a jury trial of sodomy in the first degree
(Penal Law former § 130.50 [4]). In appeal No. 2, defendant appeals
from a judgment convicting him following the same jury trial of sodomy
in the first degree (former § 130.50 [4]), two counts of criminal
sexual act in the first degree (§ 130.50 [4]), and sexual abuse in the
first degree (§ 130.65 [3]).

     The convictions arise from two indictments based upon allegations
that defendant sexually assaulted or abused five underage victims.
The first indictment, which is the subject of appeal No. 1, charged
defendant with course of sexual conduct against a child in the first
degree (Penal Law § 130.75 [1] [b]). The second indictment, which is
the subject of appeal No. 2, charged defendant with, inter alia,
course of sexual conduct against a child in the first degree (§ 130.75
[1] [b]) (count one); two counts of predatory sexual assault against a
child on the ground that he committed a course of sexual conduct
against a child in the first degree (§§ 130.75 [1] [b]; 130.96)
(counts two and six); and sexual abuse in the first degree (§ 130.65
[3]) (count 10).
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                                                         KA 14-01695

     Before trial, County Court granted the People’s motion to
consolidate the indictments and denied defendant’s cross motion to
sever count one from the second indictment. After the close of proof,
the court granted the People’s motion to amend the indictments so that
the two counts of course of sexual conduct against a child in the
first degree, as charged in the first indictment and count one of the
second indictment, were replaced with two counts of sodomy in the
first degree (Penal Law former § 130.50 [4]), and the two counts of
predatory sexual assault against a child, as charged in counts two and
six of the second indictment, were replaced with two counts of
criminal sexual act in the first degree (§ 130.50 [4]).

     Viewing the evidence in light of the elements of the crimes in
appeal Nos. 1 and 2 as charged to the jury (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).

     We reject defendant’s contention that the court erred in granting
the People’s motion to consolidate the indictments. The offenses
charged therein were the “same or similar in law” (CPL 200.20 [2]
[c]), and defendant failed to demonstrate prejudice resulting from the
consolidation (see People v Davey, 134 AD3d 1448, 1451; People v
Molyneaux, 49 AD3d 1220, 1221, lv denied 10 NY3d 937). Contrary to
defendant’s further contention, the court did not abuse its discretion
in denying his motion to sever count one from the second indictment,
inasmuch as defendant failed to demonstrate the requisite good cause
for a discretionary severance under CPL 200.20 (3) (see People v
Keegan, 133 AD3d 1313, 1314, lv denied 27 NY3d 1152; see generally
People v McKinnon, 15 AD3d 842, 843, lv denied 4 NY3d 888).

     Defendant contends that he was denied effective assistance of
counsel based on his attorney’s prior representation of two
prosecution witnesses. We reject that contention. The court was
apprised of the potential conflict of interest and thus had a duty to
“inquire[] of defendant to ascertain, on the record, whether he had an
awareness of the potential risks involved in his continued
representation by the attorney and had knowingly chosen to continue
such representation” (People v Lombardo, 61 NY2d 97, 102; see People v
McCutcheon, 109 AD3d 1086, 1087, lv denied 22 NY3d 1042). Although
the court erred in failing to conduct such an inquiry, we nonetheless
conclude that defendant was not denied effective assistance of counsel
inasmuch as he failed to demonstrate that “the conduct of his defense
was in fact affected by the operation of the conflict of interest, or
that the conflict operated on the representation” (People v Ortiz, 76
NY2d 652, 657 [internal quotation marks omitted]; see McCutcheon, 109
AD3d at 1087). Contrary to defendant’s further contention that he was
denied effective assistance of counsel based on his attorney’s
constitutionally inadequate performance, we conclude that defendant
was afforded meaningful representation (see generally People v Baldi,
54 NY2d 137, 147).

     We agree with defendant, however, that the court erred in
granting the People’s motion to amend the indictments at the close of
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                                                         KA 14-01695

proof. The fact that defendant consented to the amendments is of no
moment because he has “ ‘a fundamental and nonwaivable right to be
tried only on the crimes charged’ ” (People v Graves, 136 AD3d 1347,
1348, lv denied 27 NY3d 1069; see People v Powell, 153 AD2d 54, 58, lv
denied 75 NY2d 969). “An indictment may not be amended in any respect
which changes the theory or theories of the prosecution as reflected
in the evidence before the grand jury which filed it” (CPL 200.70 [2];
see People v Grega, 72 NY2d 489, 495-496). Unlike the crimes charged
in the amended indictments, the crimes of course of sexual conduct
against a child in the first degree and predatory sexual assault
against a child based upon allegations that defendant committed a
course of sexual conduct against a child in the first degree as
charged in the initial indictments do not criminalize a specific act,
and thus do not require jury unanimity with respect to a specific act
(see People v Calloway, 176 Misc 2d 161, 165-166; see generally People
v Pabon, 28 NY3d 147, 154). For that reason, we conclude that the
amendments of the indictments “resulted in an impermissible
substantive change in the indictment[s] by adding new counts that
changed the theory of the prosecution” (People v Green, 250 AD2d 143,
145, lv denied 93 NY2d 873; see generally People v Baker, 123 AD3d
1378, 1380-1381). We therefore reverse the judgments insofar as they
convicted defendant on those counts, and dismiss those counts of the
amended indictments without prejudice to the People to re-present any
appropriate charges under those counts to another grand jury.

     In light of our determination, we address defendant’s challenge
to the severity of the sentence only insofar as it concerns count 10
of the amended indictment in appeal No. 2 and conclude that the
sentence with respect to that count is not unduly harsh and severe.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
