People v. Cataldo (Travis)

People v Cataldo (2020 NY Slip Op 51219(U)) [*1] People v Cataldo (Travis) 2020 NY Slip Op 51219(U) [69 Misc 3d 132(A)] Decided on October 8, 2020 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on October 8, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ 2019-882 W CR The People of the State of New York, Respondent, against Travis Cataldo, Appellant. John P. Savoca, for appellant. Westchester County District Attorney (Jordan K. Hummel and William C. Milaccio of counsel), for respondent. Appeal from a judgment of the Justice Court of the Town of Mount Pleasant, Westchester County (Robert J. Ponzini, J), rendered January 31, 2019. The judgment convicted defendant, after a nonjury trial, of forcible touching and harassment in the second degree, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Defendant was charged in a superseding information with forcible touching (Penal Law § 130.52 [1]), unlawful imprisonment in the second degree (Penal Law § 135.05), and harassment in the second degree (Penal Law § 240.26 [1]). At a nonjury trial, the complainant testified that, while on a date with defendant, defendant stopped his vehicle on a dark road and tried to kiss her, held her wrists tightly above her head, and touched her left breast. The complainant further testified that she objected to defendant's behavior, kicking him and screaming, and was eventually able to flee defendant's vehicle and run to a nearby house where the homeowner called 911. The complainant was taken to a police station, where she provided a statement and photographs were taken of visible injuries to her cheek, lip, and wrists. The photographs were [*2]admitted into evidence. In addition to the complainant, the People's witnesses included the homeowner who called 911 and the responding police officer. Defendant disputed the complainant's version of the vehicle encounter and testified that the complainant grabbed the steering wheel and slapped him repeatedly when he refused her request to drive to New York City to go dancing. Defendant admitted that he grabbed the complainant's wrists, but denied holding them above her head or touching her breast. Following the trial, defendant was found guilty of forcible touching and harassment in the second degree. On appeal, defendant argues that the charges of forcible touching and harassment in the second degree were duplicitous and that his trial counsel's failure to raise this issue amounted to the ineffective assistance of counsel. Defendant further contends that the verdict was against the weight of the evidence. Defendant's duplicity claim is unpreserved for appellate review (see CPL 470.05 [2]; People v Allen, 24 NY3d 441, 449-450 [2014], quoting People v Becoats, 17 NY3d 643, 651 [2011] ["To allow an unpreserved claim of duplicitousness to be raised on appeal would open the door to abuse"]). In any event, defendant's claim lacks merit. CPL 200.30 (1) provides that "[e]ach count of an indictment may charge one offense only." The Court of Appeals explained in People v Keindl (68 NY2d 410, 417-418 [1986]), that "acts which separately and individually make out distinct crimes must be charged in separate and distinct counts, and where one count alleges the commission of a particular offense occurring repeatedly during a designated period of time, that count encompasses more than one offense and is duplicitous" (citations omitted). Here, the People charged defendant with multiple and distinct crimes, arising from one single event, not from multiple events over time. Therefore, defendant was properly charged with one count of forcible touching and one count of harassment in the second degree, two separate and distinct crimes, which, contrary to defendant's contention, do not have "very similar" elements. For the reasons set forth above, we find defendant's ineffective assistance of counsel claim to be equally without merit. Defendant has not demonstrated that because trial counsel failed to move to dismiss the forcible touching or harassment in the second degree counts as duplicitous, he failed to provide "meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]), as such motion would have been completely baseless. Moreover, the record demonstrates that trial counsel effectively cross-examined the People's witnesses, directed defendant's testimony, and delivered opening and closing statements (see People v Lane, 60 NY2d 748 [1983]; People v Barrera, 69 AD3d 951 [2010]). In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People [*3]v Wu, 63 Misc 3d 159[A], 2019 NY Slip Op 50867[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Upon weighing "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d at 495 [internal quotation marks and citation omitted]), we find that, based on the weight of the credible evidence, the Justice Court properly credited the victim's account of the incident and rejected defendant's exculpatory testimony (see People v Danielson, 9 NY3d at 348; People v Engle, 49 Misc 3d 131[A], 2015 NY Slip Op 51432[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). Accordingly, the judgment of conviction is affirmed. ADAMS, P.J., TOLBERT and RUDERMAN, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 8, 2020