SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1396 

KA 12-01265 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RAYMOND GRAVES, DEFENDANT-APPELLANT.

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF

COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Onondaga County Court (Joseph E.

Fahey, J.), rendered June 26, 2012. The judgment convicted defendant,

upon a jury verdict, of predatory sexual assault against a child (two

counts), criminal sexual act in the second degree (19 counts), rape in

the second degree (16 counts) and endangering the welfare of a child

(two counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing those parts convicting

defendant of two counts of predatory sexual assault against a child,

16 counts of criminal sexual act in the second degree, and two counts

of endangering the welfare of a child and vacating the sentence

imposed on those counts, and as modified the judgment is affirmed, and

a new trial is granted on counts 1, 4, 5, 10 through 13, 17 through

28, and 45 of the indictment. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of two counts of predatory sexual assault against

a child (Penal Law § 130.96), 19 counts of criminal sexual act in the

second degree (§ 130.45 [1]), 16 counts of rape in the second degree

(§ 130.30 [1]) and two counts of endangering the welfare of a child (§

260.10 [1]). We reject the contention of defendant that the

conviction is not supported by legally sufficient evidence (see

generally People v Bleakley, 69 NY2d 490, 495). Viewing the evidence

in the light most favorable to the People (see People v Contes, 60

NY2d 620, 621), we conclude that “there is a valid line of reasoning

and permissible inferences to support the jury’s finding that

defendant committed the crimes of which he was convicted based on the

evidence presented at trial” (People v Spencer, 119 AD3d 1411, 1413-

1414, lv denied 24 NY3d 965). Likewise, 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 conclude that the verdict is not
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against the weight of the evidence (see generally Bleakley, 69 NY2d at

495). 

We agree with defendant, however, that we must reverse the

conviction of predatory sexual assault under counts one and five,

criminal sexual act under counts 10 through 13 and 17 through 28, and

endangering the welfare of a child under counts four and 45, because

County Court’s instructions created the possibility that the jury

convicted him based on theories different from those set forth in the

indictment, as limited by the bill of particulars. We therefore

modify the judgment accordingly.

Although defendant did not object to the court’s instructions and

thus did not preserve his contention for our review, we conclude that

“preservation is not required” (People v Greaves, 1 AD3d 979, 980),

inasmuch as “defendant has a fundamental and nonwaivable right to be

tried only on the crimes charged,” as limited by either the bill of

particulars or the indictment itself (People v Duell, 124 AD3d 1225,

1226 [internal quotation marks omitted], lv denied 26 NY3d 967; see

Greaves, 1 AD3d at 980; People v Burns, 303 AD2d 1032, 1033). Where

the court’s jury instruction on a particular count erroneously

contains an additional theory that differs from the theory alleged in

the indictment, as limited by the bill of particulars, and the

evidence adduced at trial could have established either theory,

reversal of the conviction on that count is required because there is

a possibility that the jury could have convicted the defendant upon

the uncharged theory (see People v Martinez, 83 NY2d 26, 32-35; People

v Grega, 72 NY2d 489, 496; Greaves, 1 AD3d at 980-981; Burns, 303 AD2d

at 1033-1034). Indeed, such an error cannot be deemed harmless

because it is impossible for an appellate court reviewing a general

verdict to ascertain on which theory the jury convicted the defendant

or whether the jury was unanimous with respect to the theory actually

charged in that count (see Martinez, 83 NY2d at 34-36; Burns, 303 AD2d

at 1033-1034).

Here, counts one and five of the indictment, as limited by the

bill of particulars, charged defendant with committing predatory

sexual assault against a child by engaging in two or more acts of oral

sexual “contact” with each victim consisting of “contact between the

mouth and the penis” (Penal Law § 130.00 [2] [a]; see §§ 130.75 [1]

[b]; 130.96). The court’s instructions, however, permitted the jury

to convict defendant upon a finding that he engaged in two or more

acts of sexual conduct with each victim, which included “contact

between . . . the mouth and the . . . vagina” (§ 130.00 [2] [a]), as

well as sexual contact by touching, either directly or through

clothing, the sexual or intimate parts of the victims for the purpose

of sexual gratification (see § 130.00 [3]). The People adduced

evidence at trial that defendant engaged in those additional forms of

sexual conduct with the victims during the relevant time frames. 

Thus, defendant’s conviction of predatory sexual assault against a

child under counts one and five must be reversed because the jury, or

members thereof, could have convicted defendant upon an uncharged

theory (see Greaves, 1 AD3d at 980-981; Burns, 303 AD2d at 1033-1034;

see generally Grega, 72 NY2d at 496; People v Gunther, 67 AD3d 1477,
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1477-1478). The People contend that any error was harmless because

there is no basis on this record to conclude that the jury convicted

defendant of committing instances of uncharged sexual conduct, but not

the conduct charged in the indictment, as limited by the bill of

particulars. We reject that contention. Where, as here, there is

evidence establishing uncharged theories, thus rendering it impossible

for us to determine whether the verdict was based on such uncharged

theories, we may not employ a harmless error analysis and, “in effect,

assume the jury’s fact-finding function by concluding that the jury

must have reached its result on [the charged theories only]”

(Martinez, 83 NY2d at 35).

We further agree with defendant that the court’s instruction with

respect to the charges of criminal sexual act under counts 10 through

13 and 17 through 28 permitted the jury to convict him upon a theory

not charged in the indictment, as limited by the bill of particulars. 

The bill of particulars alleged that defendant had engaged in oral

sexual conduct with one of the victims consisting of contact between

the mouth and the penis, whereas the court’s erroneous instruction

permitted the jury to convict defendant also upon a finding that he

engaged in oral sexual conduct involving contact between the mouth and

the vagina (see Penal Law §§ 130.00 [2] [a]; 130.45 [1]). The People

adduced evidence at trial that defendant’s acts against the victim

during the relevant time periods included contact between the mouth

and the vagina and, thus, we conclude that the jury, or members

thereof, could have convicted defendant upon an uncharged theory (see

Greaves, 1 AD3d at 980-981; Burns, 303 AD2d at 1033-1034).

In addition, we conclude that defendant’s conviction of

endangering the welfare of a child under counts four and 45 must be

reversed based on the same rationale. The jury, or members thereof,

could have convicted defendant on uncharged theories because the

court’s instruction permitted the jury to convict defendant upon a

finding that he “knowingly act[ed] in a manner likely to be injurious

to the physical, mental or moral welfare” of the victims (Penal Law §

260.10 [1]) without limiting the jury’s consideration to the

particular acts of sexual “contact” alleged in the bill of

particulars. Here, the People adduced evidence at trial of additional

acts constituting uncharged theories of that crime.

Defendant failed to preserve for our review his further

contention that certain counts of the indictment were rendered

duplicitous by evidence adduced at trial (see People v Allen, 24 NY3d

441, 449-450), and we decline to exercise our power to review that

contention as a matter of discretion in the interest of justice (see

CPL 470.15 [6] [a]; People v Brown, 82 AD3d 1698, 1700, lv denied 17

NY3d 792). We reject defendant’s contention that he was denied

effective assistance of counsel based on, among other things, defense

counsel’s failure to move to dismiss the subject counts of the

indictment as duplicitous. “To prevail on a claim of ineffective

assistance of counsel, it is incumbent on defendant to demonstrate the

absence of strategic or other legitimate explanations for [defense]

counsel’s failure to [make such a motion]” (People v Rivera, 71 NY2d

705, 709). Here, we conclude that “defendant failed to meet that
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KA 12-01265 

burden, and thus defense counsel’s purported failure, without more, is

insufficient to demonstrate ineffective assistance” (Brown, 82 AD3d at

1700-1701 [internal quotation marks omitted]). Viewing the evidence,

the law, and the circumstances of this case, in totality and as of the

time of the representation, we conclude that defendant received

meaningful representation (see generally People v Baldi, 54 NY2d 137,

147). Indeed, the record establishes that defense counsel made a

clear and cogent opening statement directed at the credibility of the

witnesses and the requirement that the People prove defendant’s guilt

beyond a reasonable doubt, lodged appropriate objections, conducted

meaningful cross-examination of the witnesses that raised some

inconsistencies in their testimony and attempted to cast doubt on

their veracity, and presented a closing argument questioning the

credibility of the People’s witnesses and arguing that the victims’

testimony was too vague to establish defendant’s guilt beyond a

reasonable doubt (see generally People v Alexander, 109 AD3d 1083,

1085).

Defendant failed to preserve for our review his further

contention that he was deprived of the right to fair notice of the

charges against him because the ranges of dates in the indictment

during which the offenses allegedly occurred were overbroad (see

People v Erle, 83 AD3d 1442, 1443, lv denied 17 NY3d 794). In any

event, we conclude that, “ ‘[i]n view of the age[s] of the victim[s]

and the date on which [they] reported the crimes, . . . the one-month

. . . periods specified in the indictment provided defendant with

adequate notice of the charges against him to enable him to prepare a

defense’ ” (People v Coapman, 90 AD3d 1681, 1682, lv denied 18 NY3d

956; see Spencer, 119 AD3d at 1413).

By failing to object to any of the alleged instances of

prosecutorial misconduct, defendant failed to preserve for our review

his contention with respect thereto (see CPL 470.05 [2]). In any

event, we conclude that “[a]ny improprieties were not so pervasive or

egregious as to deprive defendant of a fair trial” (People v Jackson,

108 AD3d 1079, 1080, lv denied 22 NY3d 997 [internal quotation marks

omitted]).

Finally, we conclude that the sentence imposed on the remaining

counts of the indictment is not unduly harsh or severe.

Entered: February 5, 2016 Frances E. Cafarell

Clerk of the Court