People v. Thanthima
Docket 84 KA 25-01023
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Criminal Appeal
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02503
- Docket
- 84 KA 25-01023
Appeal from a judgment of conviction following a jury trial in Onondaga County Court
Summary
The Appellate Division, Fourth Department affirmed defendant Bounleaung Thanthima’s convictions for predatory sexual assault against a child and endangering the welfare of a child. On appeal the defendant argued the jury heard evidence of oral sexual acts not specifically described to the grand jury, alleged prosecutorial misconduct, and ineffective assistance of counsel. The court held the indictment and bill of particulars were broad enough to cover the testimony, found the claimed prosecutorial errors either unpreserved or harmless, and determined defense counsel’s choices were strategic and did not amount to ineffective assistance. The sentence was upheld as not unduly harsh.
Issues Decided
- Whether the introduction at trial of testimony about additional oral sexual acts not described to the grand jury required reversal because it exposed the defendant to conviction on a theory not charged in the indictment.
- Whether prosecutorial misconduct during opening statement, summation, and questioning deprived the defendant of a fair trial.
- Whether defense counsel rendered ineffective assistance in failing to object to certain testimony and in other trial decisions.
Court's Reasoning
The court reasoned that the indictment together with the bill of particulars charged predatory sexual assault by two or more acts of sexual conduct, including at least one act of oral sexual conduct, and that language was broad enough to encompass the oral acts testified to by the victim. Alleged prosecutorial improprieties were either unpreserved or amounted to fair comment or harmless error, and the single improper question to an investigator was cumulative and did not deny a fair trial. Counsel's failures were found to be strategic or nonprejudicial, so they did not constitute ineffective assistance.
Authorities Cited
- People v Hymes174 AD3d 1295 (4th Dept 2019), affd 34 NY3d 1178 (2020)
- People v Pabon28 NY3d 147 (2016)
- People v Baldi54 NY2d 137 (1981)
Parties
- Appellant
- Bounleaung Thanthima
- Respondent
- The People of the State of New York
- Judge
- Theodore H. Limpert
- Attorney
- Melissa K. Swartz (for defendant-appellant)
- Attorney
- Elisabeth Dannan (for respondent)
Key Dates
- Decision date
- 2026-04-24
- Trial court judgment date
- 2024-05-14
What You Should Do Next
- 1
Consider seeking leave to appeal to the Court of Appeals
If eligible, the defendant should consult counsel about filing an application for leave to appeal to the New York Court of Appeals and verify applicable deadlines.
- 2
Consult trial counsel about post-conviction options
Discuss potential post-conviction relief, including motions to vacate or a federal habeas petition, and gather the trial record to assess any constitutional claims.
- 3
Prepare for sentence-related procedures
If pursuing resentencing or other sentence relief, identify statutory avenues and file timely motions in the trial court as advised by counsel.
Frequently Asked Questions
- What did the court decide?
- The appellate court affirmed the convictions and sentence, finding the indictment covered the trial evidence and that any alleged errors were either not preserved, harmless, or not prejudicial.
- Who is affected by this decision?
- The defendant, Bounleaung Thanthima, is affected because his convictions and sentence were upheld; the People’s prosecution and the victim’s testimony were validated by the court.
- What happens next for the defendant?
- The conviction and sentence remain in place; the defendant may consider further appellate options such as applying for leave to appeal to the Court of Appeals if eligible and within time limits.
- Did the court find any prosecutorial misconduct?
- The court found one improper question asking an investigator if the defendant was truthful, but deemed it cumulative and not prejudicial; other alleged misconduct was either unpreserved or not reversible.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
People v Thanthima - 2026 NY Slip Op 02503 People v Thanthima 2026 NY Slip Op 02503 April 24, 2026 Appellate Division, Fourth Department THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v BOUNLEAUNG THANTHIMA, DEFENDANT-APPELLANT. Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department Decided on April 24, 2026 84 KA 25-01023 Present: Lindley, J.P., Curran, Ogden, Greenwood, And Hannah, JJ. CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ELISABETH DANNAN OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Onondaga County Court (Theodore H. Limpert, J.), rendered May 14, 2024. The judgment convicted defendant upon a jury verdict of predatory sexual assault against a child and endangering the welfare of a child. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of predatory sexual assault against a child (Penal Law former § 130.96) and endangering the welfare of a child (§ 260.10 [1]). Defendant contends that reversal is required because at trial the People introduced evidence of two acts of oral sexual conduct that the grand jury did not consider, which created the possibility that he was convicted of a crime upon a different theory from the one charged in the indictment. Defendant's contention is not preserved for our review ( see generally People v Hursh , 191 AD3d 1453, 1454 [4th Dept 2021], lv denied 37 NY3d 957 [2021]), and is without merit in any event. 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 sexual conduct, including at least one act of oral sexual conduct. Thus, "[t]he language in the indictment and bill of particulars was . . . broad enough to encompass all the [oral] sexual [conduct] as testified to by the victim" ( People v Hymes , 174 AD3d 1295, 1297 [4th Dept 2019], affd 34 NY3d 1178 [2020]; see People v Myers , 194 AD3d 1426, 1427 [4th Dept 2021], lv denied 37 NY3d 967 [2021]; People v Colsrud , 144 AD3d 1639, 1640 [4th Dept 2016], lv denied 29 NY3d 1030 [2017]), and there was no possibility that defendant was convicted of a crime based on an uncharged theory. Defendant next contends that he was deprived of a fair trial based on alleged prosecutorial misconduct and ineffective assistance of counsel. Defendant failed to preserve for our review his contention with respect to the alleged instances of prosecutorial misconduct ( see CPL 470.05 [2]; People v Smith , 224 AD3d 1221, 1222 [4th Dept 2024], lv denied 41 NY3d 985 [2024]; People v Crumpler , 163 AD3d 1457, 1460 [4th Dept 2018], lv denied 32 NY3d 1003 [2018], reconsideration denied 32 NY3d 1125 [2018]). In any event, his contention is without merit. The prosecutor's remarks in the opening statement and during summation were primarily fair response to defense counsel's summation and fair comment on the evidence ( see Smith , 224 AD3d at 1222; Crumpler , 163 AD3d at 1460). We agree with defendant that it was improper for the prosecutor to ask an investigator whether he believed that defendant was being truthful with him during his interview with the investigator ( see People v Pabon , 28 NY3d 147, 157 [2016]), but we conclude that it did not deprive defendant of a fair trial. The investigator's testimony was cumulative inasmuch as the jury also listened to the recording of defendant's interview with the investigators, during which the investigators repeatedly expressed their disbelief in defendant's statements ( see generally Crumpler , 163 AD3d at 1458-1459). We have considered the remaining instances of alleged prosecutorial misconduct and conclude that "[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial" ( People v Bubis , 204 AD3d 1492, 1495 [4th Dept 2022], lv denied 38 NY3d 1149 [2022] [internal quotation marks omitted]). With respect to defendant's contention that defense counsel was ineffective, it was proper for the prosecutor to elicit testimony and comment on all the instances of oral sexual conduct, and therefore defense counsels' failure to object to that testimony does not constitute ineffective assistance of counsel ( see generally People v Stultz , 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Defense counsels' cross-examination of the investigator and comments about the victim were matters of strategy and insufficient to establish ineffective assistance ( see People v Flores , 84 NY2d 184, 187 [1994]). We have examined defendant's remaining allegations of ineffective assistance and conclude that "the evidence, the law, and the circumstances of [this] particular case, viewed in totality, and as of the time of the representation, reveal that the attorney[s] provided meaningful representation" ( People v Baldi , 54 NY2d 137, 147 [1981]). The sentence is not unduly harsh or severe. We have considered defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment. Entered: April 24, 2026 Ann Dillon Flynn