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

1096
KA 10-00652
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID G. COX, DEFENDANT-APPELLANT.


JEFFREY WICKS, PLLC, ROCHESTER (CHARLES STEINMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered January 19, 2010. The judgment
convicted defendant, after a nonjury trial, of criminal sexual act in
the first degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of criminal sexual act in the first degree under the third
count of the indictment and dismissing that count without prejudice to
the People to re-present any appropriate charges under that count of
the indictment to another grand jury, and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of two counts of criminal sexual act in the
first degree (Penal Law § 130.50 [1]). We agree with defendant that
the third count of the indictment, charging defendant with engaging in
anal sexual contact with the complainant by forcible compulsion, was
rendered duplicitous by the complainant’s testimony (see People v
Levandowski, 8 AD3d 898, 899-900; People v Davila, 198 AD2d 371, 373).
The complainant testified that the acts of anal sexual contact
occurred “more than once” over the course of a two-hour incident, and,
contrary to the People’s contention, such acts did not constitute a
continuous offense (see People v Keindl, 68 NY2d 410, 420-421, rearg
denied 69 NY2d 823), but rather were separate and distinct offenses
(see People v Russell, 116 AD3d 1090, 1091; see also People v Garcia,
141 AD3d 861, 865, lv denied 28 NY3d 929). We therefore modify the
judgment accordingly (see Keindl, 68 NY2d at 423).

     We reject defendant’s contention that Supreme Court erred in
refusing to substitute new appointed counsel, inasmuch as defendant’s
complaints concerning counsel concerned only disagreements over
                                 -2-                         1096
                                                        KA 10-00652

strategy (see People v Rupert, 136 AD3d 1311, 1311, lv denied 27 NY3d
1075), or his lack of trust in appointed counsel without a showing of
good cause therefor (see People v Sawyer, 57 NY2d 12, 19, rearg
dismissed 57 NY2d 776, cert denied 459 US 1178). Viewing the evidence
in light of the elements of criminal sexual act in the first degree
under the second count of the indictment in this nonjury trial (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict on
that count is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). The court was entitled to
credit the complainant’s testimony that defendant forced her to have
sexual contact and to reject defendant’s testimony that such contact
was consensual (see People v Cooper, 72 AD3d 1552, 1552, lv denied 15
NY3d 803, reconsideration denied 15 NY3d 892). Finally, contrary to
defendant’s contention, we conclude that the court did not abuse its
discretion in refusing to direct production of the complainant’s
psychiatric records for its in camera review. There was no showing
that the complainant’s psychiatric history had any bearing on her
ability to perceive or recall the incident (see People v Tirado, 109
AD3d 688, 689, lv denied 22 NY3d 959, reconsideration denied 22 NY3d
1091, cert denied ___ US ___, 135 S Ct 183; People v Duran, 276 AD2d
498, 498), nor was there any other basis for concluding that the
confidentiality of her psychiatric records was significantly
outweighed by the interests of justice (see People v Felong, 283 AD2d
951, 952; Duran, 276 AD2d at 498).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
