Opinion
11911 Ind. No. 703/15 1930/15 2672/16 Case No. 2019-5401
10-01-2020
The PEOPLE of the State of New York, Respondent, v. Milton NARVAEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
Gische, J.P., Oing, Singh, Mendez, JJ.
Judgment, Supreme Court, New York County (Ellen N. Biben, J. and Gilbert Hong, J. at change of counsel applications; Hong, J. at jury trial and sentencing), rendered March 23, 2018, as amended May 31, 2018 and September 14, 2018, convicting defendant, after a jury trial, of predatory sexual assault against a child (13 counts), promoting a sexual performance by a child as a sexually motivated felony (seven counts), promoting a sexual performance by a child (14 counts), sexual abuse in the first degree (two counts), aggravated sexual abuse in the third degree (one count) and possessing a sexual performance by a child (61 counts), and sentencing him, as a second felony offender, to an aggregate term of 100 years to life, unanimously affirmed.
Defendant failed to demonstrate good cause for assignment of substitute counsel (see People v. Linares, 2 N.Y.3d 507, 510–511, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ). In each instance, defendant's complaints about his counsel were generalized and conclusory ( People v. Smith, 75 A.D.3d 420, 421, 904 N.Y.S.2d 416 [1st Dept. 2010], affd 18 N.Y.3d 588, 942 N.Y.S.2d 5, 965 N.E.2d 232 [2012] ). A defendant's right to effective counsel is not violated by counsel reporting to the court that a mental health professional "informed counsel there was no reason to question defendant's mental competency" ( People v. Wilson, 45 A.D.3d 407, 407, 845 N.Y.S.2d 319 [1st Dept. 2007], lv denied 10 N.Y.3d 773, 854 N.Y.S.2d 334, 883 N.E.2d 1269 [2008] ).
The court providently exercised its discretion in admitting one video and one photograph of defendant engaging in sexually explicit but noncriminal behavior in the church where one of the crimes occurred. The evidence was probative of defendant's identity as the person sexually assaulting the young girl, who was never identified, in a video recovered from defendant's camera, and demonstrated that he had access to the obscure storage room in which the sexual assault occurred. The probative value of the images outweighed the risk of undue prejudice (see People v. Morris, 21 N.Y.3d 588, 594, 976 N.Y.S.2d 682, 999 N.E.2d 160 [2013] ).
Defendant's claim that the court violated his Confrontation Clause rights and his right to a fair trial by admitting a statement made by an unidentified person, is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. There was no violation of defendant's rights because the statement was not testimonial (see People v. Rawlins, 10 N.Y.3d 136, 156, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008], cert denied 557 U.S. 934, 129 S.Ct. 2856, 174 L.Ed.2d 601 [2009] ; People v. Bradley, 8 N.Y.3d 124, 126, 830 N.Y.S.2d 1, 862 N.E.2d 79 [2006] ). We perceive no basis for reducing the sentence.