| People v Leonard |
| 2019 NY Slip Op 53931 [177 AD3d 1158] |
| November 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Howard A. Leonard, Appellant. |
David M. Abbatoy Jr., Rochester, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Tompkins County(Rowley, J.), rendered January 25, 2016, upon a verdict convicting defendant of thecrimes of attempted sexual abuse in the first degree and endangering the welfare of achild.
In January or early February 2014, defendant allegedly inserted his finger into thevictim's vagina on one occasion and, on another occasion, laid the victim on her back andtried to unzip her pants. The victim was then 13 years old. Six months later, the victimdisclosed these incidents to her mother. Thereafter, defendant was charged by indictmentwith sexual abuse in the first degree, attempted sexual abuse in the first degree andendangering the welfare of a child. After a jury trial, he was convicted of attemptedsexual abuse in the first degree and endangering the welfare of a child. The jury did notreach a verdict on the charge of sexual abuse in the first degree, and that charge wassubsequently dismissed. Defendant was sentenced to a prison term of four years,followed by five years of postrelease supervision, on the conviction for attempted sexualabuse in the first degree and to a concurrent jail term of one year on the conviction forendangering the welfare of a child. Defendant appeals.
Defendant contends that the verdict is against the weight of the evidence because thevictim's testimony was rendered incredible by the six-month interval before she reportedthe incidents and by alleged inconsistencies in her testimony. The victim testified that shewas very close to defendant's wife and thus visited defendant's home frequentlythroughout her childhood. She spent more time with the wife than with defendantbecause defendant, who worked as a truck driver, was often away. She testified that, inJanuary or February 2014, while the wife was out shopping, defendant pulled her legover to him, reached up her shorts and put his finger in her vagina, telling the victim that"it would feel good." The victim told defendant to stop and that she did not like it, and hestopped after she asked him to do so "[a] couple times." The victim then went outsideand waited on the porch until the wife returned. She testified that she did not sayanything to the wife because she was afraid the wife would not believe her.
A week later, the victim returned to the house for another visit with the wife. Shetestified that she believed that defendant was away but that he proved to be present. Thewife went outside to hang laundry while defendant and the victim were sitting in theliving room.[FN1]Defendant then got up from his chair,pulled the victim's leg to cause her to lie on her back on the couch and tried to unzip herpants. The victim yelled for him to stop and swung her arms at him, and he stopped andreturned to his chair. When the wife came in, the victim asked to be taken home, and thewife did so. The wife asked why the victim wanted to go home, but the victim did not tellher.
The victim testified that she did not visit defendant's home again after theseincidents. Defendant subsequently broke his leg in a work injury, but the victim did notvisit him or send him a get well card. She testified that she did not tell anyone what hadhappened at first because she did not think she would be believed. However, during anargument between the victim and her mother in August 2014, the mother suggested thatthe victim should stay with defendant and his wife for a cooling-off period, as the victimhad done before for several weeks in 2013. The victim then told the mother what hadhappened, and her mother immediately took her to the police station to make areport.
The victim's mother testified that the victim had been very close to defendant's wifethroughout her childhood, visited at least every two weeks and went "everywhere" withthe wife. However, in about February 2014, the victim stopped visiting defendant's homeand never went there to stay again. The mother remembered visiting defendant after hebroke his leg in February 2014, but could not remember whether the victim had gonewith her. She testified that defendant and the wife called several times to ask why thevictim was not visiting. The victim told the mother that she was busy and preferred tospend time with her friends and to play sports. The mother did not learn the true reasonfor the victim's reluctance to visit until she disclosed the abuse during the August 2014argument.
Defendant took the stand, denied that he had touched the victim improperly andtestified that he was never alone with her in January or February 2014. He presented logsand payroll documents indicating that he was away most of the time during January 2014and until he broke his leg in the middle of February 2014, but was home for part of theday on Saturdays and all day on Sundays during that period. He stated that a friend of thewife moved in with him and the wife during this period and that the friend and the wifewere always present when the victim was there. The wife testified that the victim alwaysaccompanied the wife when she went to the store or hung laundry in January andFebruary 2014 and that she did not recall any occasion when she left the victim alonewith defendant during that time. She further stated that her friend moved into the homeduring the last week of January 2014 and that the victim visited after the friend moved in.The wife's friend testified that she moved to defendant's home on January 25, 2014, thatthe victim visited two or three times after that and that the victim visited after defendantbroke his leg. The victim, however, testified that the friend was never present during hervisits and that she had never met the friend.
Contrary to defendant's argument, the six-month delay before the victim disclosedthe abuse to her mother does not give rise to a presumption that her complaint was false.Defendant's reliance upon the prompt outcry doctrine as the basis of this argument ismisguided. The prompt outcry doctrine is an evidentiary rule permitting the admission ofhearsay evidence that a victim promptly complained of a sexual assault on the groundthat "some jurors would inevitably doubt the veracity of a victim who failed to promptlycomplain of a sexual assault" (People v McDaniel, 81 NY2d 10, 16-17 [1993];see People v Rice, 75 NY2d 929, 931 [1990]; People v Stone, 133 AD3d 982, 984 [2015]; Guide to NYEvid rule 8.37, Prompt Outcry,https://www.nycourts.gov/judges/evidence/8-HEARSAY/8.37_PROMPT%20OUTCRY.pdf). However, there is no legal presumption that a victim who does not make a promptcomplaint must not be telling the truth. Instead, the victim's delay indisclosure—like the alleged inconsistencies in her testimony and the conflictingaccounts of events given by the victim and by defendant and his witnesses—gaverise to credibility issues that were within the jury's province to resolve (see People v Olson, 110 AD3d1373, 1374 [2013], lv denied 23 NY3d 1023 [2014]; People v Borthwick, 51 AD3d1211, 1214 [2008], lv denied 11 NY3d 734 [2008]; People vThompson, 267 AD2d 602, 604 [1999], lv denied 94 NY2d 953 [2000]).Had the jury disbelieved the victim's testimony, a different verdict would not have beenunreasonable. Nevertheless, "[t]he jury chose to credit the testimony of the victim[ ] andother corroborating proof and, after according deference to that determination andweighing the conflicting proof ourselves, we cannot say that the ensuing verdict wasagainst the weight of the evidence" (People v Thornton, 141 AD3d 936, 938 [2016], lvdenied 28 NY3d 1151 [2017]; see People v Horton, 173 AD3d 1338, 1340 [2019], lvdenied 34 NY3d 933 [2019]; People v Fernandez, 106 AD3d 1281, 1283-1284[2013]).
Defendant next contends that a new trial is required because of the prosecutor'sallegedly prejudicial remarks during the summation and also because of alleged errors byCounty Court in crafting the jury charge and handling jury notes. None of these claimederrors were preserved for appellate review, but we will nevertheless examine them, asdefendant also contends that he was deprived of the effective assistance of counsel by histrial counsel's failure to raise appropriate objections. Initially, defendant's trial counseldid not object to any of the remarks in the prosecutor's summation that defendant nowcontends deprived him of a fair trial (see People v Jackson, 160 AD3d 1125, 1129 [2018], lvdenied 31 NY3d 1149 [2018]; People v Leonard, 83 AD3d 1113, 1117 [2011],affd 19 NY3d 323 [2012]; People v Lazzaro, 62 AD3d 1035, 1036 [2009]). Nomodification would have been warranted if these arguments had been preserved, as wewould have found that the challenged remarks, in every case, were fair responses to thearguments made during defendant's summation, fair comments on the evidence or both(see People v Jackson, 160 AD3d at 1129; People v Johnson, 151 AD3d 1462, 1465-1466 [2017],lv denied 30 NY3d 1106 [2018]; People v Scippio, 144 AD3d 1184, 1187-1188 [2016],lv denied 28 NY3d 1150 [2017]).[FN2]Likewise, even if defendant's contentionthat County Court improperly instructed the jury that defendant was an interested witnesshad been preserved by an appropriate objection, we would have found no error, as it iswell established that such an instruction may be given where, as here, the charge isbalanced, fair and understandable (see People v Agosto, 73 NY2d 963, 967[1989]; People v Hebert, 68AD3d 1530, 1532 [2009], lv denied 14 NY3d 841 [2010]).
Defendant likewise failed to preserve his appellate contention that County Courtgave inadequate responses to two jury notes. Notably, defendant makes no claim that hiscounsel did not have "meaningful notice" of the contents of either note (People vO'Rama, 78 NY2d 270, 277 [1991]; see CPL 310.30). The record reveals thatdefendant's counsel was fully apprised of the verbatim content of both notes and activelyagreed with the court's proposed responses. Thus, neither alleged violation constitutes amode of proceedings error, and preservation for appellate review was required (see People v Mack, 27 NY3d534, 537 [2016]; People vRobtoy, 144 AD3d 1190, 1193 [2016], lv denied 28 NY3d 1150[2017]).
The first jury note requested "some clarification beyond" County Court's originalinstruction on the definition of reasonable doubt, which had mirrored the language of thecriminal jury instructions (see CJI2d[NY] Presumption of Innocence, Burden ofProof, Proof Beyond A Reasonable Doubt). Defense counsel agreed with the court'sproposal to read the instruction again and advise the jury that the court could do nothingmore to amplify it. Had counsel objected, we would have found no error, as "[w]here,. . . after considerable deliberation, the jury requests clarification concerningthe meaning of reasonable doubt and the original instruction is adequate, it is not errorfor the [court], as [it] did here, to respond to the request by rereading that instruction"(People v Malloy, 55 NY2d 296, 298 [1982], cert denied 459 US 847[1982]).
The second jury note asked, in pertinent part, "[D]oes the victim have an option notto testify without recanting her story? Could [the victim] have chosen not to presscharges or not appear in court or was she required by law?" After a lengthy discussionwith counsel, County Court proposed to provide an "overview" of the legal process that,among other things, informed the jury that the victim was not obliged to give a statementbut, having done so, was required to appear at trial. Although defendant now contendsthat this response was prejudicial in several respects, his trial counsel activelyparticipated in crafting the court's response and suggested the addition of certainlanguage that appellate counsel now finds objectionable. Had the issue been preservedfor our review, we would have found that the information that the court provided wasnecessary to provide a meaningful response to the jury's inquiry and accurately describedthe legal process and, thus, that the court did not abuse its "significant discretion indetermining the proper scope and nature of the response" (People v Taylor, 26 NY3d217, 224 [2015]; see People v Steinberg, 79 NY2d 673, 684-685 [1992]; People v Arce, 70 AD3d1196, 1197-1198 [2010]).
Finally, defendant's contention that he did not receive the effective assistance ofcounsel is premised entirely upon his claim that his counsel should have objected to thealleged errors described above. Given our conclusion that no such errors occurred, theassertion has no merit; failure to make an argument, objection or motion that has littlechance of success does not constitute the ineffective assistance of counsel (see People v Caban, 5 NY3d143, 152 [2005]; People vBostic, 174 AD3d 1135, 1138 [2019]). The record reveals that defense counselmade appropriate objections, pursued a cogent theory of defense and obtained thedismissal of the most serious charge against defendant. We find that defendant receivedmeaningful representation (seePeople v Pitt, 170 AD3d 1282, 1286 [2019], lv denied 33 NY3d 1072[2019]; People vVanderhorst, 117 AD3d 1197, 1201 [2014], lv denied 24 NY3d 1089[2014]; People v Wiltshire,96 AD3d 1227, 1228-1230 [2012], lv denied 22 NY3d 1204 [2014]).
Clark, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The victim testified thatthe wife hung laundry outside in the winter because she did not have a working dryer,and the wife confirmed that she hung laundry outside on nice days in the winter.
Footnote 2:To the extent thatdefendant argues that the prosecutor improperly bolstered the victim's credibility byeliciting certain testimony during her direct examination, the claim is unpreserved (see People v Vanbergen, 68AD3d 1249, 1250-1251 [2009], lv denied 14 NY3d 806 [2010]). Nomodification would have been warranted if the issue had been properly before us.