| People v Trombley |
| 2010 NY Slip Op 03499 [72 AD3d 1402] |
| April 29, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dolphus A.Trombley, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langley of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered July 8, 2008, (1) upon a verdict convicting defendant of the crimes of rape in the thirddegree, endangering the welfare of a child and unlawfully dealing with a child in the first degree,and (2) convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
In September 2007, defendant was charged in an indictment with rape in the first degree,rape in the third degree, endangering the welfare of a child and unlawfully dealing with a child inthe first degree (two counts). The charges arose from an incident in which defendant, who was28 years old at the time, allegedly supplied two teenage girls with alcohol, and then engaged insexual intercourse with one of the girls (hereinafter the victim), who was 16 years old andallegedly unconscious at the time. After he was released on his own recognizance pending thesecharges, defendant was arrested and charged with burglary in the third degree and petit larceny(two counts), stemming from his theft of two dirt bikes. During the ensuing jury trial on theinitial charges, County Court dismissed one charge of unlawfully dealing with a child.Ultimately, defendant was acquitted of rape in the first degree and convicted of the remainingcharges. He thereafter pleaded guilty to burglary in the third degree in full satisfaction of thesecond indictment and was sentenced, as a second felony offender, to an aggregate term of 2 to 4[*2]years in prison in connection with both matters. Defendantappeals,[FN*]and we now affirm.
Initially, we reject defendant's argument that County Court improperly failed to enforce anunwritten cooperation agreement that he allegedly entered into with law enforcement. Adefendant seeking dismissal of an indictment pursuant to a cooperation agreement mustdemonstrate, by a preponderance of the evidence, "a clear and specific promise from theauthorities [and] services performed by the defendant involving a significant degree of risk orsacrifice" (People v Reed, 184 AD2d 536, 537 [1992]; see CPL 210.45 [7];People v Anthony C., 234 AD2d 379 [1996], lv denied 89 NY2d 983 [1997];People v Argentine, 67 AD2d 180, 184-185 [1979]; see also Matter of Chaipis vState Liq. Auth., 44 NY2d 57, 65 [1978]). At a hearing to determine whether there was acooperation agreement or breach by the People, defendant stated that he agreed to participate incontrolled drug purchases from five individuals as a confidential informant in exchange fordismissal of the rape charges pending against him. Defendant conceded, however, that he failedto make any controlled buys and investigators testified both that there was no promise to dismissthe charges against him and that defendant failed to contact them after his release from jail, asrequired. In light of this evidence and according deference to County Court's credibilitydeterminations, we agree with the court that defendant failed to establish the existence of anyspecific promise or that he performed any services in furtherance of a cooperation agreement (see People v David B., 14 AD3d617, 618 [2005], lv denied 5 NY3d 761 [2005]; People v Fraisier, 260 AD2d398, 398 [1999]; People v Anthony C., 234 AD3d at 379; People v Reed, 184AD2d at 536-537).
Similarly lacking in merit is defendant's argument that reversal is required because CountyCourt improperly modified its pretrial Sandoval ruling after the People's witnesses begantestifying. As this Court has noted, "a defendant is entitled to a pretrial ruling on thescope of permissible cross-examination as to [past criminal or immoral acts]" and, thus, reversalmay be required when the ruling is made after a defendant has committed to a particular defensestrategy (People v Cross, 25 AD3d1020, 1024 [2006] [citation omitted]; see People v Schwerbel, 224 AD2d 830, 831[1996]). Here, County Court initially ruled prior to commencement of trial that, if defendantwere to testify, the People would be permitted to ask whether defendant was ever convicted of afelony or a misdemeanor. Upon the People's pretrial request and absent any objection fromdefendant, the court permitted the People to submit a memorandum of law on the matter, andthereafter modified its ruling to permit the People to cross-examine defendant regarding certainspecific crimes. Inasmuch as defendant failed to object to the People's request to submit amemorandum of law, request a final Sandoval ruling prior to trial or object to themodification on the ground that it would interfere with his chosen defense strategy, his argumentthat his defense was impacted by the court's delay in issuing a final ruling is not preserved forour review (cf. People v Cross, 25 AD3d at 1024). Moreover, reversal in the interest ofjustice is unwarranted here because any error in this regard was harmless given theoverwhelming proof of defendant's guilt and the absence of any significant probability that theverdict would have been different if County Court had not modified its pretrial ruling (see People v Grant, 7 NY3d 421,424-426 [2006]; People v Young, 271 AD2d 751, 752 [2000], lv denied 95NY2d 859 [2000]; cf. People v Cross, 25 AD3d at 1024).[*3]
Defendant's remaining contentions regarding ineffectiveassistance of counsel and the sufficiency of the evidence before the grand jury do not requireextended discussion. Defendant failed to demonstrate that the conduct of his defense wasimpacted by any conflict of interest that may have arisen due to his counsel's previousrepresentation of one of the People's witnesses (see People v Harris, 99 NY2d 202,210-212 [2002]; People v Longtin, 92 NY2d 640, 644-645 [1998], cert denied526 US 1114 [1999]). To the extent that defendant challenges County Court's denial of hismotion to dismiss the charge of rape in the first degree on the ground that the evidence before thegrand jury was insufficient to establish a prima facie case, we note that he was acquitted of thatcharge (see People v Morin, 192 AD2d 791, 791-792 [1993], lv denied 81 NY2d1077 [1993]; People v Cunningham, 163 AD2d 412, 412 [1990]). Finally, his argumentthat the introduction of testimony related to that charge deprived him of a fair trial on theadditional charges is unsupported by the record (see People v Brown, 83 NY2d 791,793-794 [1994]).
Rose, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant makes no argumentsregarding his plea of guilty to burglary in the third degree and, thus, any issues with respectthereto are deemed abandoned (see e.g.People v Barrett, 39 AD3d 1088, 1089 [2007], lv denied 9 NY3d 863 [2007]).