| People v Stetin |
| 2018 NY Slip Op 08716 [167 AD3d 1245] |
| December 20, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher M. Stetin, Appellant. |
Matthew C. Hug, Albany, for appellant.
Kelli P. McCoski, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered September 29, 2017, upon a verdict convicting defendant of the crimes of burglary inthe second degree and assault in the second degree.
Following allegations that, in the early morning hours of September 25, 2016, defendantunlawfully entered the home of his then-girlfriend and beat her, defendant was indicted oncharges of burglary in the second degree, assault in the second degree and criminal mischief inthe fourth degree. After discovery,[FN*] the matter proceeded to a jury trial, duringwhich defense counsel successfully argued for dismissal of the charge of criminal mischief in thefourth degree. The remaining charges of burglary in the second degree and assault in the seconddegree were ultimately submitted to the jury, which found defendant guilty of both crimes.County Court thereafter denied defendant's CPL 330.30 (1) motion to set aside the verdict andsentenced defendant to an aggregate prison term of four years, followed by five years ofpostrelease supervision. Defendant now appeals, and we affirm.
Beginning with defendant's claim that his conviction for assault in the second degree was notsupported by legally sufficient evidence and was against the weight of the evidence, such aconviction requires proof that, "[w]ith intent to cause serious physical injury to another person,[the defendant] cause[d] such injury to such person" (Penal Law § 120.05 [1]). Asrelevant here, serious physical injury is defined as "physical injury . . . which causes. . . protracted disfigurement, protracted impairment of health or protracted loss orimpairment of the function of any bodily organ" (Penal Law § 10.00 [10]).
At trial, the victim, the victim's mother and the victim's friend all testified that, on theafternoon before the incident, defendant had been at the victim's home, that he was angry becausethe victim had been in contact with her ex-husband and that, after being asked to leave severaltimes, he eventually left. The victim stated that, many hours later, between 2:00 a.m. and 3:00a.m., she awoke to defendant standing over her bed. She testified that, as he directed variousinsults and offensive comments at her, defendant pulled her out of bed, picked her up and"slammed" her on the bedroom floor, which she claimed broke her "shoulder." The victimthereafter described a prolonged attack that included defendant spitting on her, knocking herunconscious, repeatedly kicking her in the legs and feet and hitting her several times in the headand face. The victim stated that, once defendant fell asleep, she called her mother, whoimmediately came over and forced defendant out of the victim's home. The mother described thevictim as having matted hair, red eyes from crying and redness on her neck, and also stated thatthe victim appeared to have trouble walking. The responding police officers similarly testifiedthat the victim appeared to have difficulty moving and they observed bruising on the victim'sbody, including on her left shoulder, arms, neck, legs and abdomen. One of the police officersfurther testified that various items in the victim's room, including a lamp, were knocked over, themattress was lying "crooked" on the bed and the sheets were in disarray. The victim's testimonyand her medical records demonstrated that, more than three weeks after the incident, she soughtmedical treatment and was determined to have a fractured left clavicle, which ultimately requiredtwo surgeries—the first being an open reduction and internal fixation requiring screws, aplate and wires and the second being the removal of the inserted hardware four months later. Torefute the victim's claim that defendant had broken her clavicle during the incident, defendantpresented testimony from a convenience store clerk who stated that she saw the victim carry two18-packs of beer shortly after the incident occurred.
Defendant argues that the victim's testimony was incredible as a matter of law because itincluded "sensational" and "uncorroborated" allegations, which were neither included in thevictim's statement to the police nor substantiated by the third-party testimony or the medicalrecords. However, the victim's account was corroborated in many respects by the medical recordsand testimony from the responding police officers and the victim's mother, including theirobservations of the victim immediately after the attack. Contrary to defendant's contentions, thevictim's testimony "was neither contradicted by any compelling evidence nor so unworthy ofbelief as to be incredible as a matter of law" (People v Cridelle, 112 AD3d 1141, 1143 [2013] [internal quotationmarks and citations omitted]; see Peoplev Fernandez, 106 AD3d 1281, 1285 [2013]; People v Newell, 290 AD2d 652,654 [2002], lv denied 98 NY2d 712 [2002]). Any testimony from the victim that was notincluded in her statement to police, or was perceived by defense counsel to be sensationalized,was explored at trial and presented a credibility issue for the jury to resolve (see People v St. Ives, 145 AD3d1185, 1187 [2016], lv denied 29 NY3d 1036 [2017]; People v Ramirez, 118 AD3d1108, 1111 [2014]). Considering the evidence in the light most favorable to the People(see People v Jones, 32 NY3d 1146, 1148[2018]), we find a valid line of reasoning and permissible inferences from which a rational jurycould conclude that defendant caused a protracted impairment of the victim's health and intendedto do so (see Penal Law §§ 10.00 [10]; 120.05 [1]; People vGraham, 297 AD2d 579, 579-580 [2002], lv denied 99 NY2d 535 [2002]; Peoplev Mohammed, 162 AD2d 367, 367 [1990], lv denied 76 NY2d 861 [1990]; cf.People v Kern, 75 NY2d 638, 658 [1990], cert denied 498 US 824 [1990]; People v Hilton, 166 AD3d 1316,1318-1319 [2018]). Further, although it would not have been unreasonable for the jury to haveresolved the credibility issues differently in this case and reached an opposite conclusion, we findthat defendant's conviction for assault in the second degree is not against the weight of theevidence (see People v Hilton, 166 AD3d at 1317-1318; People v Brabant, 61 AD3d 1014,1015-1016 [2009], lv denied 12 NY3d 851 [2009]; People v Roman, 19 AD3d 739, 740 [2005], lv denied 5NY3d 809 [2005]).
We turn next to defendant's challenge to the weight and legal sufficiency of the evidencesupporting his conviction of burglary in the second degree. As that crime was charged in thiscase, the People were required to prove that defendant "knowingly enter[ed]" the victim's homeunlawfully with the "intent to commit a crime therein" and that, while in the victim's home, he"[c]ause[d] physical injury to" the victim (Penal Law § 140.25 [1] [b]). Defendantspecifically argues that the evidence was legally insufficient to establish that his entry into thevictim's home was unlawful or that he entered with the intent to commit a crime. On these points,entry into a victim's home is unlawful if the defendant does not have a license or privilege toenter (see Penal Law § 140.00 [5]), and a defendant's intent may be properlyinferred from, among other things, the circumstances of the entry, his or her unexplainedpresence in the building and his or her actions and statements while on the premises (see People v Lara, 130 AD3d 463,464 [2015], lv denied 27 NY3d 1001 [2016]; People v Pierce, 106 AD3d 1198, 1199 [2013]; People v Bibbes, 98 AD3d 1267,1269 [2012], lv denied 20 NY3d 931 [2012]).
The victim unequivocally testified that she and defendant did not live together, thatdefendant did not have a key to her apartment and that, although defendant would sleep over afew nights a week, he had not been invited on the night in question. She stated that, afterdefendant was asked to leave her home, she did not have any further contact with him thatevening and that the door to her home had been locked when she went to bed. She furthertestified that the window next to her back door was broken and that defendant had previouslywitnessed her lift the window, reach around and unlock the back door. Testimony from both ofthe responding police officers established that, upon their arrival on the scene, they observed theback window to be open and the back door to be unlocked. The foregoing evidence, viewed inthe light most favorable to the People, was legally sufficient to establish that defendantknowingly and unlawfully entered the victim's home (see People v Jackson, 151 AD3d 1466, 1468 [2017], lvdenied 30 NY3d 950 [2017]; Peoplev Hunter, 55 AD3d 1052, 1053 [2008], lv denied 11 NY3d 898 [2008]).Furthermore, defendant's criminal intent may be reasonably inferred from the circumstances ofdefendant's unlawful entry into the victim's home, including the time at which he did so, thevictim's testimony regarding his actions and statements after he entered and the medical andtestimonial evidence establishing the victim's physical injuries (see People v Womack, 143 AD3d1171, 1171-1172 [2016], lv denied 28 NY3d 1151 [2017]; People v Lara,130 AD3d at 463-464). Accordingly, we find that defendant's conviction for burglary in thesecond degree is supported by legally sufficient evidence and, although a different conclusionwould not have been unreasonable, is not against the weight of the credible evidence (see People v Jackson, 151 AD3d1466, 1468 [2017]; People vBriggs, 129 AD3d 1201, 1204 [2015], lv denied 26 NY3d 1038 [2015]).
Defendant further argues, based on several alleged deficiencies in his legal representation,that he received ineffective assistance of counsel under both the US and NY Constitutions. Wedisagree. Under the NY Constitution, which affords greater protection to a defendant than the USConstitution, an ineffective assistance of counsel claim will fail where "the evidence, the law,and the circumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation" (People v Honghirun, 29 NY3d284, 289 [2017] [internal quotation marks and citations omitted]; see People v King, 27 NY3d 147,158 [2016]). By comparison, to prevail on an ineffective assistance of counsel claim under theUS Constitution, "a defendant must demonstrate that (1) his or her attorney committed errors soegregious that he or she did not function as counsel within the meaning of the [US] Constitution,and (2) that counsel's deficient performance actually prejudiced the defendant" (People v Gross, 26 NY3d 689, 693[2016]; see Strickland v Washington, 466 US 668, 687-688 [1984]). Importantly, "[a]defendant's criticisms of counsel must amount to more than 'a simple disagreement with[counsel's] strategies, tactics or the scope of possible cross-examination' " (People v Ildefonso, 150 AD3d1388, 1388 [2017], lv denied 30 NY3d 980 [2017], quoting People v Flores,84 NY2d 184, 187 [1994]).
Defendant primarily takes issue with defense counsel's cross-examination of the victim.Although defense counsel certainly could have more forcefully cross-examined the victim bychallenging her on testimony that was not reflected in her statement to the police or confrontingher with certain prior inconsistent statements, we cannot conclude that defense counsel lacked astrategic reason or other legitimate explanation for the manner in which he cross-examined thevictim (see People v Foulkes, 117AD3d 1176, 1177 [2014], lv denied 24 NY3d 1084 [2014]; People v Terry, 85 AD3d 1485,1488 [2011], lv denied 17 NY3d 862 [2011]; compare People v Taylor, 156 AD3d 86, 93 [2017], lvdenied 30 NY3d 1120 [2018]). Defense counsel was able to establish through hiscross-examination of one of the responding police officers that the victim did not mention certainfacts in her police statement that she had testified to at trial (see People v Terry, 85 AD3dat 1488; People v Horton, 79 AD3d1614, 1616 [2010], lv denied 16 NY3d 859 [2011]). In addition, as part of an overalldefense contesting the victim's credibility, defense counsel argued during closing argument thatthose facts to which the victim testified, but were omitted from her statement, were not of thetype to be left out of one's statement to police, had they in fact occurred (see People vTerry, 85 AD3d at 1488). Furthermore, defense counsel presented two witnesses, whosetestimony served to raise doubt as to the victim's credibility.
In addition, we cannot conclude that defense counsel lacked a strategic reason or otherlegitimate explanation for stipulating to the admission of the victim's unredacted medical recordsinto evidence. The People expressed an intention to otherwise introduce the records through thetestimony of the victim's doctor, and County Court likely would have ruled that the statementsthat defendant now argues should have been redacted were relevant to the victim's diagnosis andtreatment and, thus, admissible (seePeople v Ortega, 15 NY3d 610, 617-619 [2010]; People v Barnes, 140 AD3d 443, 443 [2016], lv denied 28NY3d 969 [2016]). Further, despite defense counsel's failure to request an adverse inferencecharge regarding photographs that were lost or destroyed by the police (see generally People v Wheeler, 124AD3d 1136, 1139-1140 [2015], lv denied 25 NY3d 993 [2015]), upon consideringthe circumstances of the case and a review of the totality of defense counsel's representation, thissingle error did not deprive defendant of meaningful representation (see People v Kluss, 143 AD3d1281, 1282 [2016], lv denied 28 NY3d 1147 [2017]). Among other things, defensecounsel gave cogent opening and closing statements, lodged numerous successful objections,conducted pointed direct and cross-examinations and argued successfully for the dismissal of thecriminal mischief charge (see People vSands, 157 AD3d 1136, 1138 [2018], lv denied 31 NY3d 986 [2018]; People v Ramos, 133 AD3d 904,909 [2015], lv denied 26 NY3d 1149 [2016]). Accordingly, although defendant points toother alleged shortcomings, our review of the record as a whole satisfies us that defendant did notreceive ineffective assistance of counsel under either the state or federal standard.
To the extent that we have not specifically addressed any of defendant's remainingcontentions, they have been reviewed and determined to lack merit.
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted to the County Court of Montgomery County for furtherproceedings pursuant to CPL 460.50 (5).
Footnote *:Contrary to defendant's assertionthat his trial counsel did not conduct discovery, defense counsel and the prosecutor each madestatements on the record regarding material that the prosecutor had turned over to defendantduring "the discovery portion of this case."