| People v Pham |
| 2014 NY Slip Op 04276 [118 AD3d 1159] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Marc Pham, Appellant. |
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered September 20, 2012, upon a verdict convicting defendant of thecrimes of rape in the first degree, criminal sexual act in the first degree, criminalcontempt in the first degree, criminal contempt in the second degree and tampering witha witness in the fourth degree.
Defendant's ex-girlfriend (hereinafter the victim), who was also the mother of two ofhis children, accused defendant of raping her during a domestic dispute. At the time, astay-away order of protection prohibited defendant from being in her presence orcontacting her in any way. A new order of protection was entered, but defendantrepeatedly attempted to call the victim from jail. He reached her twice and attempted todiscourage her from cooperating with the police or prosecution. Following a trial, a juryconvicted defendant of rape in the first degree, criminal sexual act in the first degree,criminal contempt in the first degree, criminal contempt in the second degree andtampering with a witness in the fourth degree. County Court sentenced defendant to anaggregate term of 22 years in prison and 15 years of postrelease supervision. Defendantappeals.
The jury's verdict was not against the weight of the evidence. Defendant onlyspecifically challenges the verdict on the count of criminal contempt in the first degree.That count required proof that, "in violation of a duly served order of protection,"defendant, "with [*2]intent to harass, annoy, threaten oralarm a person for whose protection such order was issued, repeatedly ma[de] telephonecalls to such person, whether or not a conversation ensue[d], with no purpose oflegitimate communication" (Penal Law § 215.51 [b] [iv]). This Court must"weigh the evidence in light of the elements of the crime as charged without objection bydefendant" (People v Noble, 86 NY2d 814, 815 [1995]; accord People vCooper, 88 NY2d 1056, 1058 [1996]). The charge included all of the statutorylanguage. In addition to the orders of protection and proof that defendant was personallyserved with them, the People submitted phone records and recordings indicating thatdefendant attempted to call the victim more than 50 times during the five days followingthe rape and actually spoke to the victim twice. The jury could find that the sheer volumeof calls indicates an intent to harass or annoy the victim, but defendant also called backwhen the victim told him to stop calling and hung up on him (see People v Soler, 52 AD3d938, 940 [2008], lv denied 11 NY3d 741 [2008]). Combined withdefendant's prior abusive relationship with the victim that resulted in the orders ofprotection, this evidence was sufficient to allow the jury to conclude that defendant wascontacting the victim to harass or annoy her, without any legitimate purpose (see People v Tomasky, 36AD3d 1025, 1025-1026 [2007], lv denied 8 NY3d 927 [2007]).
County Court did not err in allowing evidence of the history of domestic violencebetween defendant and the victim. While not admissible to demonstrate bad charactergenerally or a propensity to commit the charged crimes, "evidence of uncharged crimesor bad acts may be admitted if it establishes an element of the crime charged, such as theelement of forcible compulsion in a rape case, is inextricably interwoven with thecharged crime[ ], provide[s] necessary background[,] . . . complete[s] awitness's narrative, or falls within the five general Molineux exceptions" (People v Higgins, 12 AD3d775, 777-778 [2004], lv denied 4 NY3d 764 [2005] [internal quotationmarks and citations omitted]; see People v Cook, 93 NY2d 840, 841 [1999])."Indeed, '[p]rior bad acts in domestic violence situations are more likely to be consideredrelevant and probative evidence because the aggression and bad acts are focused on oneparticular person, demonstrating the defendant's intent [and] motive' " (People v Burkett, 101 AD3d1468, 1470 [2012], lv denied 20 NY3d 1096 [2013], quoting People v Westerling, 48 AD3d965, 966 [2008]). Testimony from the victim's sister and brother-in-law concerningthe turbulent nature of defendant's relationship with the victim was relevant andprobative evidence on the issues of intent and forcible compulsion and providednecessary background regarding their history (see People v Higgins, 12 AD3d at777-778).
County Court did not err in admitting photographs of the victim taken during hermedical examination. The sanction for failing to produce discoverable evidence pursuantto CPL 240.20 is left to the sound discretion of the trial court (see CPL 240.70[1]; People v Jenkins, 98 NY2d 280, 283-284 [2002]; People v Carpenter, 88 AD3d1160, 1161 [2011]). "Preclusion of evidence is a severe sanction, not to be employedunless any potential prejudice arising from the failure to disclose cannot be cured by alesser sanction" (People v Jenkins, 98 NY2d at 284). The People did not providedefendant with copies of the photographs when he demanded them.[FN*] The People representedthat they showed defense counsel the photographs several months before trial, althoughcounsel could not remember whether he had seen them. Defendant argued that heconsulted with a medical expert who requested the photographs, thereby causing himprejudice. [*3]Based on the content of the photographs,which were not particularly clear and depicted only light scratches and petechiae on thevictim's shoulder and wrist, and considering that the People did supply the photographsthree days before trial, we cannot say that County Court abused its discretion in denyingdefendant's request to preclude the photographs.
County Court properly allowed admission of statements that the victim made duringher medical examination. "Hospital records fall within the business records exception tothe hearsay rule as long as the information relates to diagnosis, prognosis or treatment"(People v Wright, 81 AD3d1161, 1164 [2011], lv denied 17 NY3d 803 [2011] [citation omitted]; see People v Ortega, 15 NY3d610, 617 [2010]; see also CPLR 4518; CPL 60.10). Details of the abuse,even including the perpetrator's identity, may be relevant to diagnosis and treatmentwhen the assault occurs within a domestic violence relationship because the medicalprovider must consider the victim's safety when creating a discharge plan and gaugingthe patient's psychological needs (see People v Ortega, 15 NY3d at 618-619;People v Wright, 81 AD3d at 1164). The physician who examined the victimtestified that all of the information in the medical records was relevant to and gatheredfor purposes of diagnosis or treatment, and the primary purpose of the examination wasto care for the patient's health and safety, although a secondary purpose of the forensicexamination was to gather evidence that could be used in the future for purposes ofprosecution. Considering this information, although the victim was unavailable to testifybecause she died before trial (from causes unrelated to defendant's crimes), defendant'sConfrontation Clause rights were not violated because the statements were nottestimonial (see Giles v California, 554 US 353, 376 [2008]; White vIllinois, 502 US 346, 356-357 [1992]; People v Duhs, 16 NY3d 405, 409-410 [2011]).
The victim's statements to her brother-in-law were admissible as excited utterances.He testified that when he received a phone call from the victim, she was crying, upsetand breathing heavily, and stated that defendant had just raped her and would not leaveher house. When the brother-in-law arrived at her house approximately five minuteslater, defendant was still in the house, getting dressed, and the victim was crying, pacing,physically messy and screaming at defendant, "I can't believe you did this to me" and"why would you do that." The record indicates that when the victim made thesestatements she was still under the continuing stress of the upsetting event, such that hercomments were "not the product of studied reflection and possible fabrication" (People v Auleta, 82 AD3d1417, 1419 [2011], lv denied 17 NY3d 813 [2011] [internal quotation marksand citation omitted]; accordPeople v Blackman, 90 AD3d 1304, 1308 [2011], lv denied 19 NY3d971 [2012]).
Similarly, defense counsel was not ineffective for failing to object to testimony bythe victim's sister as hearsay. The sister testified regarding the contents of a voicemailmessage left by the victim, apparently directly before she called and spoke to thebrother-in-law. Because that message was left before the victim made later statementsthat County Court—and we—deemed admissible as excited utterances, themessage would also be admissible under that hearsay exception. Counsel also would nothave been successful if he had made an objection based on the best evidence rule.Secondary evidence of the contents of an unproduced original document is permissiblewhere there is proof "that the loss or destruction of the document has been sufficientlyexplained and that the mishap was an innocent one" (People v Joseph, 86 NY2d565, 570 [1995]; see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d639, 644 [1994]). The sister testified that she listened to and saved the message severaltimes, but that it was apparently automatically deleted after a certain period of time, andshe was unaware that the deletion would occur. As the hearsay and best evidenceobjections would not have been fruitful, defendant was [*4]not deprived of effective assistance due to counsel's failureto make such objections (seePeople v Clarke, 110 AD3d 1341, 1344-1345 [2013], lv denied 22NY3d 1197 [2014]).
Considering defendant's criminal history, repeated violations of court orders, refusalto admit responsibility and his remarks at sentencing where he blamed the prosecutor, thevictim and her family, the sentence is not harsh or excessive (see People v Shepherd, 83AD3d 1298, 1302 [2011], lv denied 17 NY3d 809 [2011]; People v De Fayette, 27 AD3d840, 840-841 [2006], lv denied 7 NY3d 754 [2006]).
Stein, J.P., Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:We do not readdefendant's November 2011 disclosure demand to include a demand for the photographs,but he did explicitly request them in an April 2012 letter.