SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

857 

KA 14-00695 

PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, VALENTINO, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

PAUL S. TURLEY, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.)

 

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF

COUNSEL), FOR DEFENDANT-APPELLANT.

PAUL S. TURLEY, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Niagara County Court (Sara S.

Farkas, J.), rendered May 10, 2013. The judgment convicted defendant,

upon a jury verdict, of course of sexual conduct against a child in

the first degree, course of sexual conduct against a child in the

second degree and sexual abuse in the first degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

following a jury trial of course of sexual conduct against a child in

the first degree (Penal Law § 130.75 [1] [a]), course of sexual

conduct against a child in the second degree (§ 130.80 [1] [a]), and

sexual abuse in the first degree (§ 130.65 [1]).

Contrary to defendant’s contention, viewing the evidence in light

of the elements of the crimes as charged to the jury, we conclude that

the verdict is not against the weight of the evidence (see People v

Danielson, 9 NY3d 342, 349; see generally People v Bleakley, 69 NY2d

490, 495). The victims testified to specific details about

defendant’s multiple acts of sexual conduct with them between August

1996 and June 1998, when they were between the ages of five and seven

years old. One of the victims also testified to an act of sexual

abuse by defendant when she was 12 years old. During a recorded

telephone conversation with one of the victims, defendant made

inculpatory statements (see People v Smith, 126 AD3d 1528, 1529). 

When that victim asked defendant about why he sexually abused her,

defendant responded, inter alia, that “I was misguided in thinking

that it was something you wanted,” and that “I know it was wrong, and
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KA 14-00695 

I was trying to show you love in a way that you shouldn’t have been

shown.”

We reject defendant’s contention that he was denied effective

assistance of counsel inasmuch as defense counsel’s conduct did not

constitute “ ‘egregious and prejudicial’ error such that defendant did

not receive a fair trial” (People v Benevento, 91 NY2d 708, 713). 

Defendant contends that he was denied effective assistance of counsel

because defense counsel arguably opened the door to allow the People

to present evidence that the testimony of one of the victims had not

been tailored to come within the statute of limitations. That

contention is without merit inasmuch as the prosecutor did not present

any inculpatory evidence as a result of defense counsel’s questions. 

In any event, County Court provided the jury with a curative

instruction that required the jury not to speculate with respect to

matters that occurred outside of the time frame set forth in the

indictment. Inasmuch as the jury is presumed to have followed the

court’s curative instruction, we conclude that the curative

instruction sufficiently alleviated any prejudice to defendant (see

People v O’Neal, 38 AD3d 1305, 1307, lv denied 9 NY3d 848; People v

Ware, 28 AD3d 1124, 1125, lv denied 7 NY3d 852). Defendant further

contends that he was prejudiced by defense counsel’s statement on

summation that one of the witnesses, who is not listed as a victim in

the indictment, “didn’t say she was abused.” We reject that

contention inasmuch as the court sustained the prosecutor’s timely

objection and, after argument at the bench outside of the presence of

the jury, struck defense counsel’s statement from the record. 

Furthermore, after summations, the court granted the prosecutor’s

request for a curative instruction ordering the jury not to speculate

about what may have happened to people other than the two victims

listed in the indictment. The jury is presumed to have followed that

curative instruction as well, thereby alleviating any prejudice to

defendant (see O’Neal, 38 AD3d at 1307; Ware, 28 AD3d at 1125). 

Defendant further contends that defense counsel was ineffective

for advising him to abscond on the ground that he would not receive a

fair trial. The facts upon which that contention is based are outside

of the record on appeal, and the contention “must therefore be raised

by way of a motion pursuant to CPL article 440 or an application

seeking other [postconviction] relief” (People v Washington, 122 AD3d

1406, 1406; see People v Ocasio, 81 AD3d 1469, 1470, lv denied 16 NY3d

898, cert denied ___ US ___, 132 S Ct 318). We reject defendant’s

further contention that defense counsel’s failure to file a motion to

set aside the verdict constitutes ineffective assistance of counsel

inasmuch as defendant failed to “establish that the motion, if made,

would have been successful” (People v Peterson, 19 AD3d 1015, 1016, lv

denied 6 NY3d 851). We have reviewed the remaining instances of

alleged ineffective assistance of counsel raised by defendant and

conclude that he received meaningful representation (see generally

People v Baldi, 54 NY2d 137, 147).

We reject the contention raised in defendant’s pro se

supplemental brief that the indictment was unconstitutionally vague

because the counts for course of sexual conduct in the first and
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KA 14-00695 

second degree failed to provide fair notice of when the offending

conduct occurred. We conclude that the indictment was sufficiently

specific inasmuch as “[t]he period of [less than] two years alleged in

the indictment was sufficient to give defendant adequate notice of the

charges to enable him to prepare a defense, to ensure that the crimes

for which he was tried were in fact the crimes with which he was

charged, and to protect [his] right not to be twice placed in jeopardy

for the same conduct” (People v McLoud, 291 AD2d 867, 868, lv denied

98 NY2d 678 [internal quotation marks omitted]).

Contrary to defendant’s further contention in his pro se

supplemental brief, count one of the indictment for course of sexual

conduct against a child (Penal Law § 130.75 [1] [a]) is not timebarred by the statute of limitations set forth in CPL 30.10 (3) (f). 

The charges in the indictment occurred between August 1996 and 1998,

not 1994 as alleged by defendant. The trial testimony of the victims

established that the crimes occurred during the period set forth in

the indictment, and there is no evidence that the victims lied with

respect thereto.

Defendant further contends in his pro se supplemental brief that

he was denied a fair trial with an impartial jury. During the trial,

the court observed that “there were just some jurors perhaps out in

the rotunda” in the vicinity of lawyers who may have been talking to a

camera operator working for the press. The court responded by issuing

a “gag order,” stating “no more contact between lawyers and the press

. . .” Defendant’s contention that the court should have conducted a

voir dire in response to its observations is not properly raised on

this appeal inasmuch as that contention raises matters outside the

record concerning what a voir dire would have revealed (see generally

People v Piermont, 180 AD2d 830, 830, lv denied 79 NY2d 1006; People v

Robinson, 159 AD2d 598, 598). The issue is thus outside the record

and “must therefore be raised by way of a motion pursuant to CPL

article 440 or an application seeking other [postconviction] relief”

(Washington, 122 AD3d at 1406). 

Defendant also contends in his pro se supplemental brief that he

was denied a fair trial because one of the jurors revealed that she

often stayed overnight in Genesee County, but that she still slept at

her legal address in Niagara County several nights per week. We

conclude that such objection to the juror was waived inasmuch as

defendant did not move to remove the juror on that ground (see CPL

470.05 [2]; People v Clark, 255 AD2d 241, 241, lv denied 93 NY2d 898;

see also People v Cosmo, 205 NY 91, 100-101).

Finally, the sentence is not unduly harsh or severe.

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court