State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 106518 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MATTHEW W. BULLOCK,

Appellant.

________________________________

Calendar Date: October 11, 2016

Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

__________

Edward W. Goehler, Cortland, for appellant.

Joseph A. McBride, District Attorney, Norwich (Michael J.

Genute of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the County Court of Chenango

County (Revoir Jr., J.), rendered November 18, 2013, convicting

defendant following a nonjury trial of the crimes of criminal

sexual act in the second degree (two counts) and endangering the

welfare of a child.

In September 2012, defendant was indicted and charged with

two counts of criminal sexual act in the second degree and

endangering the welfare of a child. These charges stemmed from

allegations that defendant engaged the victim, who turned 15

years old in May 2012, in oral and anal sexual conduct in March

and April 2012. Defendant waived his right to a jury trial and,

at the conclusion of the subsequent bench trial, defendant was

convicted as charged. Defendant now appeals. 
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Initially, we find that defendant's claim that the verdict

was not supported by legally sufficient evidence was not

preserved for our review. Defendant made only a generalized

motion to dismiss at the close of the People's case, and he did

not renew his motion to dismiss at the close of all the evidence

(see People v Lancaster, 143 AD3d 1046, ___, 2016 NY Slip Op

06904, *1 [2016]; People v Robinson, 123 AD3d 1224, 1225 [2014],

lv denied 25 NY3d 992 [2015]; People v Simmons, 135 AD3d 1193,

1195 [2016], lv denied 27 NY3d 1006 [2016]). Notwithstanding

that, "our weight of the evidence review necessarily involves an

evaluation of whether all elements of the charged crimes were

proven beyond a reasonable doubt" (People v Lancaster, 2016 NY

Slip Op 06904 at *2 [internal quotation marks, brackets and

citations omitted]; see People v Richards, 78 AD3d 1221, 1222

[2010], lv denied 15 NY3d 955 [2010]). As to this review, we

must first conclude that an acquittal would not have been

unreasonable and then weigh the relative probative force of

conflicting testimony and the relative strength of conflicting

inferences that may be drawn from the testimony (see People v

Romero, 7 NY3d 633, 643-644 [2006]; People v Bleakley, 69 NY2d

490, 495 [1987]; People v Lancaster, 2016 NY Slip Op 06904 at

*2). 

A criminal sexual act in the second degree occurs when a

person 18 years old or older "engages in oral sexual conduct or

anal sexual conduct with another person less than [15] years old"

(Penal Law § 130.45 [1]). A defendant endangers the welfare of a

child where he or she, "knowingly acts in a manner likely to be

injurious to the physical, mental or moral welfare of a child

less than [17] years old" (Penal Law § 260.10 [1]). The victim

and his family moved into defendant's home at the end of October

2011, when the victim was 14 years old. At that time, defendant

was also sharing the home with his former fiancée and her child. 

The victim testified that, in early March 2012, defendant entered

his room and touched him on his penis and this happened again in

defendant's bedroom approximately one week later. The victim

further testified that a week after that, defendant engaged the

victim in oral sexual conduct and, two weeks later, in anal

sexual contact. This sequence ended in April 2012. 

In her testimony, defendant's former fiancée confirmed that

defendant would spend time alone in the victim's bedroom. She
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moved out of defendant's house in February 2012 after 

confronting defendant about the attention he had been giving the

victim. The victim's sister testified that she saw the victim

sleeping in defendant's bed during this same time frame and that

she told her mother about this sometime at the end of April 2012. 

The victim's mother testified that when she asked her son about

this, he explained that he had fallen asleep while he and

defendant were watching a movie. The victim's mother said that,

from that point forward, she made sure that the victim was in his

bedroom at night. During his testimony, defendant denied all of

the allegations. 

It is not disputed that, in June 2012, defendant made plans

to move to Florida and that, in late July 2012, the victim's

mother left defendant's home to move her family into her

boyfriend's home. In early August 2012, the victim's mother and

defendant's mother got into a physical altercation at defendant's

home over belongings that had been placed at the curb. According

to the victim's mother, the victim reported defendant's conduct

to her a few days later and she immediately contacted the State

Police. Wesley Mills, a State Police investigator who was called

as a witness by defendant, testified that he was trained to

interview children victimized by sexual abuse and that he met

with the victim on August 7, 2012. Mills testified that the

victim was unsure of the time frame but that, during the

interview, the victim stated that it happened during the month

before the family left the home; a video recording of this

interview was received into evidence. Mills asked the victim's

mother to try to get a more exact time frame and, during

counseling sessions, the victim was able to determine that the

sexual acts took place during March and April 2012, before he

turned 15.

While the timing of the sexual conduct was disputed at

trial, County Court heard the conflicting testimony and watched

the video recording of Mills interviewing the victim. In our

view, given the equivocal evidence with regard to the timing of

the contact, an acquittal on the criminal act in the second

degree charges would not have been unreasonable. Nevertheless,

County Court considered all the evidence presented, was aware of

the inconsistent evidence and that defendant believed the victim

was encouraged to falsely report the acts after the August 2012
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altercation involving his mother. In our view, the victim's

testimony was not incredible and, upon our independent

consideration and review of the evidence in a neutral light, we

find that the verdict was not against the weight of the evidence

(see People v Monroe, 134 AD3d 1138, 1140 [2015]; People v

Arnold, 85 AD3d 1330, 1332 [2011]).

Next, we reject defendant's claim that he received 

ineffective assistance of counsel. To prevail on such a claim,

"defendant must demonstrate [both] that his attorney failed to

provide meaningful representation . . . [and] the absence of

strategic or other legitimate explanations for counsel's

allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152

[2005] [internal quotation marks and citations omitted]; see

People v Rivera, 71 NY2d 705, 709 [1988]). "Counsel's

performance must be evaluated to determine whether the tactics

and strategies were consistent with those of a reasonably

competent attorney. The test is reasonable competence, not

perfect representation" (People v Oathout, 21 NY3d 127, 128

[2013] [internal quotation marks and citations omitted]). Here,

defendant contends that counsel was ineffective because he did

not seek to suppress or object to the introduction of evidence

with regard to prior bad acts between defendant and the victim,

failed to effectively examine Mills about the victim's interview

and failed to properly subpoena State Police records. 

First, because defendant's course of conduct against the

victim was an essential element of the crime of endangering the

welfare of a child, we discern no basis for suppression or

objection (see People v Fuller, 50 AD3d 1171, 1176 [2008], lv

denied 11 NY3d 788 [2008]), and "a defendant is not denied the 

effective assistance of counsel when counsel fails to raise

issues that have little or no chance of succeeding" (People v

Rodriguez, 121 AD3d 1435, 1440 [2014], lv denied 24 NY3d 1122

[2015]). As for Mills, defense counsel specifically examined him

about the victim's inconsistent explanations with regard to the

timing of the sexual acts and offered the video recording into

evidence. The video was played prior to the People's crossexamination of Mills. On redirect, defense counsel inquired

further about the inconsistencies. Contrary to defendant's

claim, we find that defense counsel adequately highlighted the

timing issue for the court, and we emphasize that our review does
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not extend to assessing counsel's performance "with the clarity

of hindsight to determine how the defense might have been more

effective" (People v Benevento, 91 NY2d 708, 712 [1998]).

Finally, inasmuch as Mills testified that the requested records

did not exist, we discern no prejudice from defense counsel's

alleged failure to properly subpoena the purported records (see

People v Carlton, 120 AD3d 1443, 1444-1445 [2014], lv denied 25

NY3d 1070 [2015]). 

Peters, P.J., Devine, Clark and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court