| People v Green |
| 2013 NY Slip Op 05009 [108 AD3d 782] |
| July 3, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMarcus Green, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered June17, 2008 in Albany County, upon a verdict convicting defendant of the crimes of courseof sexual conduct against a child in the first degree and endangering the welfare of achild (three counts).
In October 2003, the three child victims moved into a house in the City of Albanyshared by defendant, his girlfriend (who had become custodian of the victims after theirmother's death) and the couple's four children. Defendant moved out of the home inJanuary 2005, the day after victim C disclosed to the girlfriend that defendant had actedinappropriately towards her; almost two years later, victim A disclosed that defendanthad subjected him to oral and anal sexual contact between 2003 and 2005. Victim B thendisclosed that defendant had subjected him to sexual contact as well. As a result,defendant was arrested and charged by indictment with the crimes of course of sexualconduct against a child in the first degree related to victim A and three counts ofendangering the welfare of a child.[FN*][*2]
All three victims testified at the 2008 jury trial, atwhich time victim A was 12 years old, victim B was 13 years old and victim C was 11years old. Defendant was convicted of the crimes of course of sexual conduct against achild in the first degree and three counts of endangering the welfare of a child, one countwith respect to each victim. Defendant was sentenced to an aggregate prison term of 25years and five years of postrelease supervision, and he now appeals.
First, defendant argues that Supreme Court erred in denying his challenge for causeto a prospective juror, who revealed a business relationship with an Albany policeofficer—who was not a potential witness—and personal relationships withother nontestifying Albany police officers. A prospective juror is disqualified pursuant toCPL 270.20 (1) (c) if the juror has certain enumerated relationships with the parties, thewitnesses or counsel or, as relevant here, if "he [or she] bears some other relationship toany such person of such nature that it is likely to preclude him [or her] from rendering animpartial verdict." Here, although he had relationships with some Albany police officers,the prospective juror had no connection to or personal knowledge of any of the potentialpolice department witnesses (see People v Colon, 71 NY2d 410, 418-419 [1988],cert denied 487 US 1239 [1988]; compare People v Furey, 18 NY3d 284, 288 [2011]).Indeed, there is no evidence in the record that he would not have been impartial. Inresponse to questioning, he did not indicate that he was biased, that he would be inclinedto give the testimony of a police officer more weight or credibility, or that he would notbe a fair and impartial juror (compare People v Nicholas, 98 NY2d 749, 752[2002]; People v Jones, 45AD3d 1178, 1178-1179 [2007]). Moreover, when questioned by defense counsel, heconfirmed that he would not find defendant guilty unless the People proved their casebeyond a reasonable doubt. Accordingly, as " '[n]umerous cases have held that a juror'srelationship with a [nontestifying] police officer . . . [is] insufficient toconstitute implied bias[,]' " it was not error for Supreme Court to deny defendant'schallenge for cause (People v Pickren, 284 AD2d 727, 727 [2001], lvdenied 96 NY2d 923 [2001], quoting People v Butts, 140 AD2d 739, 741[1988]; see People v Colon, 71 NY2d at 418-419; People v Stafford, 302AD2d 325, 326-327 [2003], lv denied 99 NY2d 658 [2003]; People vJones, 299 AD2d 283, 283 [2002], lv denied 99 NY2d 655 [2003]).
Defendant's contention—that the testimony of the two older victimsrecounting their initial disclosures was inadmissible because it was not established thattheir disclosures occurred at the first suitable opportunity—is not preserved for ourreview since he did not object to or move to strike this testimony at trial (see People v Stearns, 72 AD3d1214, 1218 [2010], lv denied 15 NY3d 778 [2010]; People v Shook,294 AD2d 710, 712 [2002], lv denied 98 NY2d 702 [2002]; People vArcher, 232 AD2d 820, 822 [1996], lv denied 89 NY2d 1087 [1997]).Moreover, defendant did not object to the victims' testimony but, rather, elicited oncross-examination of the two older victims the fact that they did not disclose the abusewhen they had the opportunity to do so, away from defendant's influence. Thus, SupremeCourt properly provided the prompt outcry jury instruction over defendant's belatedobjection that the testimony had been inadmissible (see CPL 300.10 [2]; seealso People v Bright, 261 AD2d 192, 193 [1999], lv denied 93 NY2d 967[1999]).
Notably, the victims' testimony regarding the circumstances surrounding their initialdisclosures was limited to their delayed reporting of defendant's behavior to thegirlfriend, testimony which did not elaborate as to the details or type of abuse disclosedand was not bolstered by any testimony or reports by others of their demeanor at the timeof the disclosures. Clearly, the prompt outcry instruction was relevant to their testimony,particularly considering that, on cross-examination and in summation, defendant pointedout that each of the older two [*3]victims had delayeddisclosure and that they each continued to associate with defendant after the abuse hadended. Moreover, Supreme Court's instruction was fair, balanced, followed the CriminalJury Instructions very closely (see CJI2d[NY] Prompt Outcry) and, " 'taken as awhole, [it] conveyed to the jury the correct standard' " (People v Medina, 18 NY3d98, 104 [2011], quoting People v Drake, 7 NY3d 28, 32 [2006]). Nor do we findthat defendant was prejudiced by the instruction; if anything, the charge providedadditional safeguards to defendant by cautioning the jury to consider the victims' delayeddisclosures in evaluating their credibility. Indeed, the prompt outcry charge is usually alimiting instruction that is favorable to and requested by a defendant (see e.g. People v Spicola, 16NY3d 441, 464 and n 8 [2011], cert denied, 565 US —, 132 S Ct 400[2011]; People v Geddes, 186 AD2d 993, 993-994 [1992]) and, here, the court'sinstruction prevented any potential misuse of the admitted testimony by the jury(see CJI2d[NY] Prompt Outcry; People v Lapi, 105 AD3d 1084, 1088 [2013]; People v Bernardez, 85 AD3d936, 938 [2011], lv denied 17 NY3d 857 [2011]).
Next, defendant failed to preserve his argument that Supreme Court "usurped hisright to chart his own defense" by administering the prompt outcry charge over hisobjection (People v McCall, 88 NY2d 838, 840 [1996]) and, in any event, thatargument is without merit (see People v Baez, 268 AD2d 201, 202 [2000], lvdenied 94 NY2d 901 [2000]; People v Bright, 261 AD2d 192, 193 [1999],lv denied 93 NY2d 967 [1999]; compare People v Bradley, 88 NY2d901, 903-904 [1996]; People v DeGina, 72 NY2d 768, 776-777 [1988]). Thecourt's delivery of the prompt outcry instruction was consistent with and did not weakenthe defense's theory that defendant was innocent, that the children fabricated theallegations and were not credible, and that there were other possible sources for theirknowledge of sexual conduct. The court's instruction placed no additional burden ondefendant (compare People v DeGina, 72 NY2d at 776-777; People vBradley, 88 NY2d at 903-904). Accordingly, the jury was properly instructed.
Inasmuch as defendant's pro se argument that he did not receive the effectiveassistance of counsel is based, in part, on matters outside the record, it is more properlythe subject of a CPL article 440 motion (see People v McCray, 102 AD3d 1000, 1009 [2013]). Tothe extent that his arguments are premised upon matters in the record before us, we findthem to be without merit. Notably, "[a] contention of ineffective assistance of trialcounsel requires proof of less than meaningful representation, rather than simpledisagreement with strategies and tactics" (People v Hamms, 55 AD3d 1142, 1144 [2008], lvdenied 11 NY3d 925 [2009] [internal quotation marks and citation omitted]; see People v Guay, 72 AD3d1201, 1204 [2010], affd 18 NY3d 16 [2011]). As the People's medicalexpert testified that there were no physical signs of sexual abuse, which defense counselcarefully highlighted on cross-examination, defense counsel's failure to unnecessarily calla rebuttal medical expert did not constitute ineffective assistance (see People v Aikey, 94 AD3d1485, 1487 [2012], lv denied 19 NY3d 956 [2012]; People v Auleta, 82 AD3d1417, 1419 [2011], lv denied 17 NY3d 813 [2011]; People v Whitmore, 12 AD3d845, 848 [2004], lv denied 4 NY3d 769, 892 [2005]). Similarly unavailing isdefendant's argument that counsel should have called a rebuttal witness or engaged in anin-depth cross-examination of the People's other expert, who never met the victims orreviewed their records and testified only to the generalities of child sexual abuseaccommodation syndrome (seePeople v Izzo, 104 AD3d 964, 967-968 [2013]; People v Wallace, 60 AD3d1268, 1270 [2009], lv denied 12 NY3d 922 [2009]). Nor do we find an"absence of strategic or other legitimate explanations for counsel's allegedly deficientconduct" in declining to delve into the apparently volatile nature of defendant'srelationship with his girlfriend (People v McCray, 102 AD3d at 1008 [internalquotation marks and citation omitted]). While such testimony may have suggested amotive for the girlfriend to coerce the children into lying, it also relied on facts and [*4]evidence that were either inadmissible or portrayeddefendant in an unfavorable light. As defense counsel presented cogent opening andclosing statements, effectively brought to light prior allegations of sexual abuse withrespect to one victim to cast doubt on that child's credibility, and otherwise presented aplausible and coherent defense, viewing the record in its totality, we find that defendantreceived meaningful representation (see People v O'Daniel, 105 AD3d 1144, 1147 [2013]; People v Artis, 90 AD3d1240, 1241 [2011], lv denied 18 NY3d 955 [2012]).
Finally, defendant argues that the maximum prison sentence of 25 years that wasimposed for his felony conviction is harsh and excessive. We disagree. At the time thatdefendant abused the victims, the children were particularly vulnerable due to a recenttragedy in their lives, and he took advantage of and preyed upon their fear, uncertaintyand desire not to be separated from each other. It is clear that defendant's abuse of victimA was prolonged; the child was, among other things, forced—under threat offoster care—to perform oral sex on defendant several times a week for a period ofover one year, and defendant beat the child with a belt and used threats to prevent himfrom reporting the abuse, all of which had a profound impact on the child (see People v Sapienza, 91AD3d 988, 989 [2012]). In light of defendant's criminal history, which includes aprior sexual offense, and his failure to take responsibility for his conduct, we find noabuse of discretion or extraordinary circumstances warranting modification (see People v Beauharnois, 64AD3d 996, 1001 [2009], lv denied 13 NY3d 834 [2009]; People v Sieber, 26 AD3d535, 536 [2006], lv denied 6 NY3d 853 [2006]; People v Dunton, 30 AD3d828, 830 [2006], lv denied 7 NY3d 847 [2006]). Defendant's remainingcontentions have been considered and are without merit.
Lahtinen, J.P, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Prior to trial, SupremeCourt dismissed count 3 of the indictment, charging defendant with sexual abuse in thefirst degree, as duplicitous.