                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   105848
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

THOMAS J. LANCASTER,
                    Appellant.
________________________________


Calendar Date:   September 7, 2016

Before:   Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


      Randolph V. Kruman, Cortland, for appellant, and appellant
pro se.

      Robert M. Carney, District Attorney, Schenectady (Hannah
E.C. Moore, New York Prosecutors Training Institute, Inc.,
Albany, of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from a judgment of the County Court of Broome County
(Smith, J.), rendered March 14, 2013, upon a verdict convicting
defendant of the crimes of criminal sexual act in the first
degree (two counts), rape in the first degree, aggravated sexual
abuse in the first degree and predatory sexual assault.

      Defendant was charged in a nine-count indictment with three
counts of criminal sexual act in the first degree, two counts of
rape in the first degree, three counts of aggravated sexual abuse
in the first degree and predatory sexual assault, stemming from
allegations that he sexually assaulted five victims at various
times and locations throughout Broome County. Following a jury
                              -2-                105848

trial, defendant was convicted of two counts of criminal sexual
act in the first degree with respect to one victim (hereinafter
victim 1) and rape in the first degree and aggravated sexual
abuse in the first degree with respect to a second victim
(hereinafter victim 2). Defendant was also convicted of one
count of predatory sexual assault. County Court thereafter
sentenced defendant to an aggregate prison term of 40 years to
life. Defendant now appeals.

      Defendant argues that the verdict was not supported by
legally sufficient evidence and was against the weight of the
evidence. Initially, we note that, "by failing to make a timely
detailed motion to dismiss directed at the specific deficiencies
in the evidence" (People v Barringer, 54 AD3d 442, 443 [2008],
lvs denied 11 NY3d 830, 836 [2008]), or by failing to renew such
a motion after the close of his proof, defendant failed to
preserve his challenge to the legal sufficiency of the evidence
(see People v Keener, 138 AD3d 1162, 1162-1163 [2016], lv denied
27 NY3d 1134 [2016]; People v Farnham, 136 AD3d 1215, 1215
[2016], lv denied 28 NY3d 929 [2016]). "Although defendant's
present challenge to the legal sufficiency of the evidence is
unpreserved for our review, our weight of the evidence review
necessarily involves an evaluation of whether all elements of the
charged crime[s] were proven beyond a reasonable doubt at trial"
(People v Jones, 136 AD3d 1153, 1156 [2016] [internal quotation
marks and citation omitted], lv dismissed 27 NY3d 1000 [2016]).
"Where . . . a different verdict would not have been
unreasonable, this Court must view the evidence in a neutral
light and, like the trier of fact below, weigh the relative
probative force of conflicting testimony and the relative
strength of conflicting inferences that may be drawn from the
testimony" (People v Olsen, 124 AD3d 1084, 1085-1086 [2015]
[internal quotation marks and citations omitted], lv denied 26
NY3d 933 [2015]; see People v Bleakley, 69 NY2d 490, 495 [1987];
People v Simmons, 111 AD3d 975, 979-978 [2013], lv denied 22 NY3d
1203 [2014]). "Issues of credibility and the weight to accord
testimony are matters to be resolved by the trier of fact, who is
free to accept or reject any part of the testimony presented"
(People v Rosa, 57 AD3d 1018, 1019 [2008] [citations omitted], lv
denied 12 NY3d 762 [2009]; see People v Beliard, 101 AD3d 1236,
1239 [2012], lv denied 20 NY3d 1096 [2013]).
                              -3-                105848

      With respect to the charge of criminal sexual act in the
first degree, the People had to prove that defendant "engage[d]
in oral sexual conduct or anal sexual conduct with another
person" by "forcible compulsion" (Penal Law § 130.50 [1]).
Victim 1 testified that defendant forced her to perform oral sex
against her will. Thereafter, defendant forced her to have anal
sex. According to victim 1, she was screaming and begging for
defendant to stop, but he held her down. For the charge of rape
in the first degree, the People were required to prove that
defendant "engage[d] in sexual intercourse with another person"
by "forcible compulsion" (Penal Law § 130.35 [1]). Victim 2
testified that defendant forced her onto her hands and knees and
forcibly had sexual intercourse with her. She was terrified of
defendant and did as he demanded. With respect to the charge of
aggravated sexual abuse in the first degree, the People had to
prove that defendant "insert[ed] a foreign object in the
vagina . . . of another person causing physical injury . . . [b]y
forcible compulsion" (Penal Law § 130.70 [1] [a]). With respect
to this charge, victim 2's testimony was that defendant forcibly
inserted a foreign object into her vagina, despite the fact that
she pushed him away and screamed in pain. In her testimony, the
victim described physical injuries suffered as a result of this
incident. A nurse practitioner also testified and described her
findings upon physical examination, which were consistent with
the victim's descriptions.

      Finally, to establish a conviction for predatory sexual
assault as charged in the indictment, the People were required to
prove that defendant "commit[ted] the crime of rape in the first
degree, criminal sexual act in the first degree, [or] aggravated
sexual abuse in the first degree . . . and . . . [h]e . . . has
engaged in conduct constituting [such crimes] against one or more
additional persons" (Penal Law § 130.95 [2]). On appeal,
defendant argues that County Court failed to explain the
"temporal implications" of the statute. We reject this argument
since, here, County Court specified that the jury first had to
"[find] . . . defendant guilty beyond a reasonable doubt of
either criminal sexual act in the first degree, rape in the first
degree or aggravated sexual abuse in the first degree against one
alleged victim" and, second, find defendant guilty of one of
those crimes against "a different, separate victim." County
                              -4-                105848

Court's instructions made clear that the jury had to
preliminarily find defendant guilty of one of the enumerated
crimes before finding him guilty of one of the same crimes
against a separate, subsequent victim, thus addressing the
inherent "temporal implications" of the predatory sexual assault
statute. Based on the record before us, the evidence has
demonstrated that defendant has committed one or more of the
enumerated crimes against multiple victims – victim 1 and victim
2. Defendant's argument is thus unavailing and the verdict need
not be disturbed on this basis.

      Defendant's acquittal of these crimes would have been
reasonable, since the jury could have credited defendant's
testimony that the encounters with both victims were consensual
and deemed that the testimony of the victims was unworthy of
belief. However, weighing the evidence in a neutral light and
deferring to the jury's credibility assessments, we find that,
based on the record before us, the weight of the admissible
evidence amply supports the convictions (see People v Scaringe,
137 AD3d 1409, 1416 [2016], lv denied 28 NY3d 936 [2016]; People
v Farnham, 136 AD3d at 1216-1217; People v Thiel, 134 AD3d 1237,
1239-1240 [2015], lv denied 27 NY3d 1156 [2016]).

      We turn next to defendant's claim that a second search of
his home, which turned up the foreign object, was unlawful.
Prior to defendant's arrest, a search warrant was issued
authorizing law enforcement to search defendant's home for
certain physical evidence including, among other things, the
foreign object used during the commission of some of the alleged
crimes. At the suppression hearing, William Hannigan, an
investigator with the State Police, testified that, on January
27, 2012, he arrived at defendant's home to execute the search
warrant and take defendant into custody. Fred Fraley,
defendant's brother, was in the driveway of defendant's home when
Hannigan arrived. G. Frederick Goodall, a senior investigator
with the State Police, testified that he supervised and
participated in the execution of the search warrant of
defendant's home, and the search team did not recover the foreign
object on that date. On February 1, 2012, Fraley informed the
State Police that he had discovered an item that was listed on
the search warrant – specifically, the foreign object – that the
                              -5-                105848

State Police had not found during the January 27, 2012 search.
Goodall went to defendant's home and spoke with Fraley, who
showed Goodall where he had located the item. Goodall
photographed the item, which was located in a suitcase in a
cluttered room, and took it as evidence. Goodall stated that he
knew it was not Fraley's home, but also knew that, at the time
the search warrant was executed, defendant had given Fraley
permission to take his son and leave officers in control of the
house, so he assumed that Fraley's permission lasted "right on
through." Goodall's understanding was that Fraley had "control
of [the house] until [defendant] gets out of jail[;] therefore,
he can turn something over to us, if he finds it." Fraley
testified that he was present at defendant's home during the
execution of the search warrant and had returned to defendant's
home, after defendant's arrest, and began packing and cleaning up
for him, per defendant's request. He testified about the
location of the item, which he found in the back storage room of
defendant's home, buried underneath wood, drywall and a mattress,
and explained that he called the police about the discovery since
he did not want them to think he was hiding evidence.

      Defendant contends that County Court should have granted
his motion to suppress the foreign object as it was seized from
his home several days after the execution of the search warrant.
The People contend that County Court properly denied defendant's
motion to suppress because the police acted reasonably in
entering defendant's home the second time to seize the item,
given that Fraley had actual authority to consent to the second
search. "Even in the absence of a warrant, police may lawfully
search a residence where an [individual] with apparent authority
to consent to the search freely and voluntarily does so" (People
v Grillo, 128 AD3d 1103, 1104-1105 [2015] [citations omitted];
see People v Edwards, 124 AD3d 988, 989 [2015], lv denied 25 NY3d
1201 [2015]; People v Dean, 46 AD3d 1229, 1231 [2007], lv denied
10 NY3d 763 [2008]). "[W]here the searching officers rely in
good faith on the apparent capability of an individual to consent
to a search and the circumstances reasonably indicate that that
individual does, in fact, have the authority to consent, evidence
obtained as the result of such a search should not be suppressed"
(People v Adams, 53 NY2d 1, 9 [1981], cert denied 454 US 854
[1981]; see People v Dean, 46 AD3d at 1231; People v Harris, 274
                              -6-                105848

AD2d 837, 839 [2000], lv denied 95 NY2d 935 [2000]). "[T]he
police belief must be reasonable, based upon an objective view of
the circumstances present and not upon the subjective good faith
of the searching officers" (People v Adams, 53 NY2d at 9; see
People v Dean, 46 AD3d at 1231; People v Cunningham, 229 AD2d
669, 670 [1996]).

      The testimony at the suppression hearing established that
defendant entrusted his brother with his home, authorizing him to
come and go in order to clean up, provide his children with their
belongings and remove defendant's personal property should
defendant lose his home while incarcerated. The second search
was limited in scope to the entry of a specific room in the home
so that the State Police could retrieve only the item that Fraley
had discovered. Given these circumstances, County Court properly
found that Fraley possessed the requisite authority to consent to
the second search of the home and that the officers' belief that
Fraley had the apparent authority to consent to the search of
defendant's home was reasonable. Accordingly, County Court
properly denied defendant's motion to suppress the item (see
People v Dean, 46 AD3d at 1231; People v Vasquez, 298 AD2d 230,
230 [2002], lv denied 100 NY2d 543 [2003]; People v Martinez, 298
AD2d 897, 898 [2002], lv denied 98 NY2d 769 [2002], cert denied
538 US 963 [2003]).1

      Defendant next argues that County Court erred in failing to
remove a seated juror who was the aunt of a prospective witness
and in denying his motion to set aside the verdict on the ground
that a juror was allegedly sleeping during the trial. First,
with regard to defendant's claim that a seated juror should have


    1
        Although defendant now alternatively argues on appeal
that Fraley did not have the authority to consent to the search
of defendant's suitcase, this issue was not fully explored during
the suppression hearing. Under the circumstances, the police
belief that Fraley was operating within the scope of his
authority, when he rummaged through the suitcase at defendant's
home, was reasonable given that Fraley had been given control
over defendant's home and his possessions.
                              -7-                105848

been removed because she was related to a prospective witness,
once the juror informed County Court of her discovery of this
fact, the court conducted an appropriate probing and tactful
inquiry, in the presence of both counsel, into the juror's
ability to be impartial, fair and objective. Following that
inquiry, defense counsel did not object to the juror remaining
seated. Accordingly, this issue is unpreserved for our review.
In any event, were this issue before us, we would not find that
the juror was grossly unqualified to serve in this case (see CPL
270.35 [1]; People v Buford, 69 NY2d 290, 298 [1987]; People v
Colburn, 123 AD3d 1292, 1295 [2014], lv denied 25 NY3d 950
[2015]). With respect to whether a juror was sleeping, "[a]s a
general rule alleged errors must be raised at a time when they
can be corrected at trial" (People v Alfaro, 66 NY2d 985, 987
[1985]; see CPL 330.30 [1]). The juror's purported instances of
falling asleep occurred in the presence of County Court, and
defendant was apparently aware of this issue as the trial was
taking place and prior to the verdict and never alerted the court
to this or raised this issue during the trial. Accordingly, his
argument is unpreserved for further appellate review (see People
v Blond, 96 AD3d 1149, 1152-1153 [2012], lv denied 19 NY3d 1101
[2012]).

      Defendant also contends that he did not receive the
effective assistance of counsel because counsel failed to pursue
an intoxication defense. "To establish a claim of ineffective
assistance of counsel, defendant 'is required to demonstrate that
he was not provided meaningful representation and that there is
an absence of strategic or other legitimate explanations for
counsel's allegedly deficient conduct'" (People v Ramos, 133 AD3d
904, 909 [2015], lvs denied 26 NY3d 1143, 1149 [2016], quoting
People v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934
[2012]; see People v Caban, 5 NY3d 143, 152 [2005]). "Meaningful
representation simply requires that defense counsel's efforts
reflect that of a reasonably competent attorney" (People v Coley,
129 AD3d 1327, 1329 [2015] [citation omitted], lv denied 26 NY3d
927 [2015]; see People v Oathout, 21 NY3d 127, 128 [2013]).

      Defendant testified that he drank a lot of alcohol and,
although he recalled when he stopped drinking, he could not
recall the drive home, being helped into his bedroom or getting
                              -8-                105848

into bed. However, when asked, defendant insisted and maintained
that he did not do any of the things that victim 1 claimed that
he had done, despite the fact that he could not recall other
events of the evening. Counsel may have chosen not to make such
a request because it might call into question defendant's
recollection of the evening and his insistence that he did not
commit the crimes charged. Defendant has not established that
there is an absence of a legitimate or strategic reason for
counsel's failure to request a charge of the defense of
intoxication (see People v Russell, 133 AD3d 1199, 1201 [2015],
lv denied 26 NY3d 1149 [2016]; People v Underdue, 89 AD3d 1132,
1134 [2011], lv denied 19 NY3d 969 [2012]). Furthermore, on the
record before us, we find that defense counsel provided zealous
advocacy, provided cogent opening and closing statements and
raised effective objections, and defendant was ultimately
acquitted of several counts of the indictment. Accordingly,
counsel's representation was, viewed in its totality, effective,
meaningful and competent, and the verdict should not be disturbed
on this basis (see People v Noguel, 93 AD3d 1319, 1321 [2012], lv
denied 19 NY3d 965 [2012]).

      We turn next to defendant's arguments concerning his
conviction of predatory sexual assault and, initially, we note
that defendant's claim that Penal Law § 190.35 is void for
vagueness and, therefore, unconstitutional, is unpreserved for
this Court's review, as defendant did not object to the statute's
constitutionality before, during or after the trial or during the
jury charge (see CPL 470.05 [2]; People v Graham, 93 NY2d 934,
935 [1999]; People v Rodriguez, 302 AD2d 240, 242 [2003], lv
denied 99 NY2d 658 [2003]). Defendant also argues that County
Court erred in its charge to the jury. While discussing the jury
charge for this crime with counsel, both defense counsel and the
People agreed with the proposed charge and felt that it was
accurate and appropriate. Moreover, defense counsel did not
object to County Court's charge at the time that it was being
offered to the jury. Defendant's contention that the jury charge
for the crime of predatory sexual assault was incorrect is, thus,
unpreserved for appellate review (see People v Dumancela, 136
AD3d 1053, 1053 [2016], lv denied 27 NY3d 1150 [2016]; People v
Green, 119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014];
People v Houck, 101 AD3d 1239, 1240 [2012]).
                              -9-                105848

      However, we do find merit to defendant's argument, in his
pro se supplemental brief, that his convictions for criminal
sexual act in the first degree, rape in the first degree and
aggravated sexual abuse in the first degree are lesser included
offenses to the crime of predatory sexual assault (see Penal Law
§ 130.95 [2]) in that, under the indictment, defendant was
charged with and convicted of two counts of criminal sexual act
in the first degree with respect to victim 1 and rape in the
first degree and aggravated sexual abuse in the first degree with
respect to victim 2. "A crime is a lesser included offense of a
charge of a higher degree only when in all circumstances, not
only in those presented in the particular case, it is impossible
to commit the greater crime without concomitantly, by the very
same conduct, committing the lesser offense" (People v Baker, 123
AD3d 1378, 1380 [2014]; see People v Wheeler, 67 NY2d 960, 962
[1986]; CPL 1.20 [37]). "[R]ape in the first degree is a lesser
included offense of predatory sexual assault in that the former
is an element of the latter and defendant could not have
committed the latter without also committing the former" (People
v Al Haideri, 141 AD3d 742, 745 [2016]; see People v Earl, 133
AD3d 875, 875 [2015], lv denied 26 NY3d 1144 [2016]; People v
Ortiz, 95 AD3d 1140, 1141 [2012], lv denied 19 NY3d 999 [2012]).
Defendant's convictions of criminal sexual act in the first
degree (a class B felony) with respect to victim 1 is a lesser
included offense of predatory sexual assault in the first degree
(a class A-II felony) and, pursuant to CPL 300.40 (3) (b), the
lesser included offense is deemed dismissed, but not an
acquittal. The same holds true for defendant's convictions for
rape in the first degree and aggravated sexual abuse in the first
degree with respect to victim 2. Accordingly, defendant's
convictions for criminal sexual act in the first degree (counts 2
and 3) with respect to victim 1 and rape in the first degree and
aggravated sexual abuse in the first degree (counts 5 and 6) with
respect to victim 2 must be reversed and the sentences imposed
thereon vacated (see CPL 300.40 [3] [b]; People v Lee, 39 NY2d
388, 390 [1976]; People v Hayes, 104 AD3d 1050, 1052 [2013], lv
denied 22 NY3d 1041 [2013]).

      Finally, defendant argues that he was "impermissibly
punished" for asserting his right to stand trial with a longer
sentence than was offered during a plea opportunity. As an
                              -10-               105848

initial matter, this assertion is unpreserved for this Court's
review (see People v Snyder, 91 AD3d 1206, 1215 [2012], lv denied
19 NY3d 968 [2012], cert denied 133 S Ct 791 [2012]; People v
Ward, 10 AD3d 805, 808 [2004], lv denied 4 NY3d 768 [2005]). In
any event, we note that, "[t]he mere fact that a sentence imposed
after trial is greater than that offered in connection with plea
negotiations is not proof that defendant was punished for
asserting his right to trial" (People v Molina, 73 AD3d 1292,
1293 [2010] [internal quotation marks and citations omitted], lv
denied 15 NY3d 807 [2010]; see People v Foulkes, 117 AD3d 1176,
1177 [2014], lv denied 24 NY3d 1084 [2014]).

      Defendant also claims that his sentence was harsh and
excessive. "'A sentence which falls within the statutory
parameters will not be disturbed on appeal absent evidence of a
clear abuse of discretion or the existence of extraordinary
circumstances'" (People v Fairley, 63 AD3d 1288, 1290 [2009], lv
denied 13 NY3d 743 [2009], quoting People v Lanfair, 18 AD3d
1032, 1034 [2005], lv denied 5 NY3d 790 [2005]). Upon
defendant's conviction of predatory sexual assault, a class A-II
felony, County Court sentenced defendant to 20 years to life in
prison. County Court's rationale for the sentence it imposed –
which included the compelling evidence of defendant's propensity
to commit sexual offenses, the need to protect society,
defendant's extensive criminal past, defendant's lack of remorse
or sympathy and his strong likelihood of committing future
violent sexual crimes — demonstrates that the sentence imposed
was appropriate. As we find no abuse of discretion on County
Court's part nor any extraordinary circumstances warranting a
reduction of his sentence, it will not be disturbed (see People v
Foulkes, 117 AD3d at 1177; People v Edwards, 96 AD3d 1089, 1092
[2012], lv denied 19 NY3d 1102 [2012]); People v Welch, 71 AD3d
1329, 1332 [2010], lv denied 15 NY3d 811 [2010]).

      Defendant's remaining contentions raised in his pro se
brief, including those with regard to jury selection and note
taking by the jury, are unpreserved for appellate review. His
arguments regarding rulings concerning the admissibility of
hearsay evidence have been examined and determined to be lacking
in merit.
                              -11-                 105848

     Peters, P.J., McCarthy, Garry and Rose, JJ., concur.



      ORDERED that the judgment is modified, on the law, by
reversing defendant's convictions of criminal sexual act in the
first degree, rape in the first degree and aggravated sexual
abuse in the first degree under counts 2, 3, 5 and 6 of the
indictment; said counts dismissed and the sentences imposed
thereon vacated; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
