| People v Sposito |
| 2021 NY Slip Op 02441 [193 AD3d 1236] |
| April 22, 2021 |
| Appellate Division, Third Department |
[*1](April 22, 2021)
| The People of the State of New York,Respondent, v Joseph Sposito, Appellant. |
Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City (Donna Aldea of counsel),for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Pritzker, J. Appeal, by permission, from an order of the Supreme Court (McDonough, J.),entered April 16, 2019 in Albany County, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crimes of rape in the first degree andcriminal sexual act in the first degree, after a hearing.
Defendant faced charges following his sexual encounter with a victim who was allegedlyphysically helpless and incapable of consent due to her intoxication. Following a 2012 jury trial,he was convicted of rape in the first degree and criminal sexual act in the first degree. Hissubsequent motion for forensic DNA testing pursuant to CPL 440.30 (1-a) was denied, as was hismotion to vacate the judgment of conviction upon the ground that he was denied the effectiveassistance of counsel (see CPL 440.10 [1] [h]). Upon appeal, this Court affirmed thejudgment of conviction and the denial of defendant's CPL 440.30 motion, but found that ahearing was required to assess the claims in his CPL 440.10 motion (140 AD3d 1308, 1312-1313[2016], affd 30 NY3d 1110 [2018]). Supreme Court conducted that hearing uponremittal, then denied the motion. Defendant appeals by permission.
A criminal defendant is guaranteed the effective assistance of counsel by both the US andNY Constitutions and, pursuant to the more stringent standard under the NY Constitution,receives it when "the evidence, the law, and the circumstances of a particular case, viewed intotality and as of the time of the representation, reveal that the attorney provided meaningfulrepresentation" (People v Baldi, 54 NY2d 137, 147 [1981]; see US Const 6thAmend; NY Const, art I, § 6; People v Clark, 28 NY3d 556, 562-563 [2016]; People v Dickinson, 182 AD3d783, 789 [2020], lv denied 35 NY3d 1065 [2020]). It is a defendant's burden to showthat meaningful representation was not provided and, further, that there were no "strategic orother legitimate explanations—i.e., those that would be consistent with the decisions of areasonably competent attorney—for the alleged deficiencies of counsel" (People v Maffei, 35 NY3d 264,269 [2020] [internal quotation marks and citation omitted]; see People v Caban, 5 NY3d 143, 152 [2005]; People v Green, 190 AD3d 1094,1100 [2021]; People v Bowen, 185AD3d 1219, 1220-1221 [2020]). Following our review of the record here, and deferring toSupreme Court's implicit determination that trial counsel's testimony at the CPL article 440hearing was credible (see People vNelson, 171 AD3d 1251, 1253 [2019], lv denied 36 NY3d 1058 [2021]), weconclude that defendant failed to make that showing. We therefore affirm.
Defendant claims that trial counsel was ineffective in waiving a suppression hearing and infailing to consult with or call experts to rebut the People's expert proof, and some discussion ofthe facts is needed to place those arguments into context. The crimes for which defendant wasconvicted arose out of a sexual encounter with the victim at [*2]amutual acquaintance's home, where they had gone after an evening of heavy drinking, and it wasalleged that the victim was so intoxicated as to be "incapable of consent by reason of beingphysically helpless" (Penal Law §§ 130.35 [2]; 130.50 [2]). The victim wastransported to the hospital after the encounter, where she was found to have a high blood alcoholconcentration and physical indicia of rough, potentially nonconsensual, vaginal and anal sex. Notlong after that, investigators interviewed defendant and others who had been at the residence.Defendant, who was not Mirandized before he engaged in that recorded interview, consistentlymaintained that the victim was conscious and willing throughout the sexual encounter. After hewas Mirandized hours into the interview and investigators challenged aspects of his account,defendant altered his account by, among other things, retracting his initial claim that the victimhad invited him into the room where she was resting and clarifying that he asked to join her inbed several times without response before she "murmur[ed]" her assent. Defendant then invokedhis right to counsel and terminated the interview.[FN1]
With that background in mind, we turn to trial counsel's decision to waive a Huntleyhearing and allow defendant's recorded statements into evidence at trial. A defense attorney is notobliged to seek suppression of a defendant's statements, and it is a "rare case where a defendantshows the absence of a strategic or legitimate explanation in counsel's strategy not to" do so (People v Zeh, 144 AD3d 1395,1396 [2016], lv denied 29 NY3d 954 [2017]; see People v Rivera, 71 NY2d 705,709 [1988]). It is initially apparent that counsel did not overlook the issue, as he was aware thatthere was an arguable basis to suppress the recorded statements and sought that relief as part ofhis pretrial omnibus motion. Counsel explained that this was not because he believed thatsuppression was likely, but rather because he knew that the motion would force the People to gobeyond their usual "stingy" discovery practices and turn over grand jury testimony and otheritems prior to the suppression hearing.[FN2] Indeed, counsel testified that he did not wantthe statements suppressed because he believed that they would benefit the defense at trial, whichis why he waived the Huntley hearing on the morning it was to occur after receiving thesought-after discovery and discussing the matter with defendant.
In support of his belief that the admission of the statements would be beneficial, counselexplained that defendant had maintained throughout the interview that the victim was an activeand willing participant in the sexual encounter and that, if the statements were suppressed, thejury would only hear about the changes that defendant had made to his story when, as expected,he testified at trial and was cross-examined about them (see e.g. People v Martin, 8 AD3d 883, 886 [2004], lvdenied 3 NY3d 677 [2004[*3]]). In contrast, if the entireinterview were put into evidence with appropriate redactions, the defense would benefit fromhaving the jury repeatedly hear defendant's exculpatory version of events and be assured thatalmost all of his account had remained consistent over time. Counsel further believed that anydamage caused by the jury seeing defendant walk back aspects of his story could be ameliorated,reasoning that jurors could be persuaded to sympathize with a "desperate" and "confused"defendant who wavered on a few points after prolonged, increasingly hostile questioning, butremained "adamant that everything that had just happened was consensual and [that the victim]was awake for it." The trial record reflects that counsel ably pursued that strategy and, in ourview, defendant gave no compelling reason to doubt that "counsel's decision to waive aHuntley hearing was legitimately based upon . . . the consistency ofdefendant's statement to the police, and coincided with the defense pursued at trial" (People v Umana, 143 AD3d 1174,1175 [2016], lv denied 29 NY3d 1037 [2017]; see People v De Mauro, 48 NY2d892, 893-894 [1979]; People vRodabaugh, 26 AD3d 598, 599-600 [2006]; compare People v Carnevale, 101 AD3d 1375, 1381 [2012]).
Next, although defendant complains that counsel failed to consult with experts or presenttheir testimony to rebut proof related to the victim's sexual assault examination, her degree ofintoxication and the presence of defendant's genetic material in her anus, the hearing evidencereflected that counsel "had a strategic reason for [that] failure" (People v Gross, 26 NY3d 689, 694[2016]; see People v Little, 192AD3d 408, 408 [2021]; People vOlson, 162 AD3d 1249, 1251 [2018], lv denied 32 NY3d 1067 [2018]; People v Auleta, 82 AD3d 1417,1419-1420 [2011], lv denied 17 NY3d 813 [2011]). To reiterate, defendant and the victimindisputably had a sexual encounter, and the charges against defendant alleged that he had analand vaginal sex with a victim who was physically helpless and, as a result, was unable to consent(see Penal Law §§ 130.00 [7]; 130.35 [2]; 130.50 [2]). A finding thatthe victim was alert and willing would have therefore resulted in defendant's acquittal on allcharges, and counsel made the tactical decision to focus on that issue to the exclusion of murkierbattles over whether the alleged anal sexual conduct had occurred or whether some of theconclusions drawn by the People's experts were open to question. Counsel explained that hechose that course because of emotionally charged testimony from the victim, the sexual assaultnurse examiner and others, all of whom he realized posed a real danger of inflaming thesympathies of the jury against defendant. As such, counsel viewed it as essential to present anarrowly tailored defense that kept the jury "singl[ed] in on" concrete facts pointing to the victimas an active participant in the sexual encounter. In view [*4]of theevidence and the nature of the charges against defendant, counsel's decision "reflect[ed] anobjectively reasonable and legitimate trial strategy under the circumstances" (People vBerroa, 99 NY2d 134, 138 [2002]; see People v Gross, 26 NY3d at 694; People vJohnson, 273 AD2d 495, 496-497 [2000], lv denied 95 NY2d 854 [2000]).
Counsel's hearing testimony and the trial record reflect that he pursued that strategy bycross-examining the People's experts and carefully eliciting that neither the damaging findings ofthe victim's sexual assault examination nor her estimated blood alcohol concentration ruled outher being conscious and engaging in consensual sex. One of those experts, the sexual assaultnurse examiner, also confirmed that the victim was fully awake and aware when they spoke a fewhours after the sexual encounter. Counsel further elicited from eyewitnesses that thevictim—who did not remember arriving at the acquaintance's residence, going to bed orthe sexual encounter itself—was moving and speaking soon before and after the encounterand was heard making noises during it that were suggestive of consensual sex. In addition,counsel described in his hearing testimony how he sought out other evidence to support hisstrategy, such as subpoenaing an emergency medical technician who he declined to put on thestand after learning that, notwithstanding written indications to the contrary, the victim was"effectively unconscious" when she was transported in an ambulance after the sexual encounter.The foregoing depicts the competent execution of a reasonable strategy by counsel, and thecontention that expert proof could have furthered it in some way amounts to a "disagreementwith defense counsel's tactics and strategies . . . [that does not] rise to the level oftrue ineffectiveness" (People vMorehouse, 5 AD3d 925, 927 [2004], lv denied 3 NY3d 644 [2004]; see People v Mosley, 155 AD3d1124, 1128-1129 [2017], lv denied 31 NY3d 985 [2018]; People v Morgan, 149 AD3d 1148,1154 [2017]; People v Green, 108AD3d 782, 786 [2013], lv denied 21 NY3d 1074 [2013]).
In short, there were strategic explanations for the complained-of actions of counsel and, asdefendant failed to demonstrate that a reasonably competent attorney would not have taken them(see CPL 440.30 [6]), they should not be second-guessed (see People vBenevento, 91 NY2d 708, 712 [1998]; People v White-Span, 182 AD3d 909, 916 [2020], lv denied35 NY3d 1071 [2020]; People v Olson, 162 AD3d at 1251). Our review of the record as awhole gives no other reason for concern—to the contrary, it confirms a capableperformance from counsel at every stage—and we are accordingly satisfied that defendantreceived meaningful representation (seePeople v VanDeusen, 129 AD3d 1325, 1327 [2015], lv denied 26 NY3d 972[2015]; People v Manchester, 123AD3d 1285, 1289 [2014], lv denied 26 NY3d 931 [2015]). Thus, Supreme Courtproperly denied defendant's motion to vacate the judgment [*5]ofconviction.
Garry, P.J., Clark and Aarons, JJ., concur.
Colangelo, J. (dissenting). I respectfully dissent. Because, in my view, it was objectivelyunreasonable for defendant's trial counsel to waive a Huntley hearing and to fail toconsult with and/or call experts during the trial, defendant was deprived of the effectiveassistance of counsel. I would therefore reverse and order a new trial.
"To establish a claim of ineffective assistance of counsel, a defendant is required todemonstrate that he or she was not provided meaningful representation and that there is anabsence of strategic or other legitimate explanations for counsel's allegedly deficient conduct"(People v Bowen, 185 AD3d1219, 1220-1221 [2020] [internal quotation marks and citations omitted]; see People v Caban, 5 NY3d 143,152 [2005]; People v Cassala, 130AD3d 1252, 1253 [2015], lv denied 27 NY3d 994 [2016]). I find that defendant hasestablished such claim here.
First, defense counsel was ineffective for failing to seek suppression of his unconstitutionallyobtained confession and recorded telephone conversation by waiving a Huntley hearingthat the trial court had granted. "While the failure of counsel to make a pretrial suppressionmotion generally does not necessarily equate to a deprivation of meaningful representation,counsel may still be deemed ineffective in the rare case where a defendant shows the absence of astrategic or legitimate explanation in counsel's strategy not to pursue a suppression motion," and,in this regard, "counsel's subjective reasons for this strategy are immaterial" (People v Zeh, 144 AD3d 1395,1396-1397 [2016], lv denied 29 NY3d 954 [2017] [internal quotation marks, ellipsis,brackets and citations omitted]). It is well settled that Miranda warnings are requiredprior to custodial interrogation and that a statement obtained in violation of this principle must besuppressed (see Miranda v Arizona, 384 US 436, 471-472 [1966]; People v Berg,92 NY2d 701, 704 [1999]; People vHenry, 114 AD3d 1025, 1026 [2014], lv dismissed 22 NY3d 1199 [2014]). Asuspect is in custody when, under the circumstances, "a reasonable person innocent of anywrongdoing would have believed that he or she was not free to leave" (People v Paulman, 5 NY3d 122,129 [2005]; see People v Pittman,178 AD3d 1136, 1137 [2019], lv denied 34 NY3d 1162 [2020]). Defendant'svideotaped statement revealed that, among other things, defendant was questioned extensively atthe police station before Miranda warnings were given, and investigators engaged in adiscussion with defendant about the warnings before they were read. Defendant then gaveinculpatory statements that contradicted his earlier statements and what would ultimately be histrial testimony, admitting that the victim was unresponsive when he got into bed with her andthat she was unable to be roused by his attempts to communicate with her. Defendant thereafterinvoked his right to counsel. After doing so[*6], defendant waspermitted to make telephone calls that were recorded by investigators without his knowledge.During one of the calls, defendant made statements regarding the incident that were relied uponby the People at trial.
At the CPL article 440 hearing, defendant's trial counsel explained that he waived theHuntley hearing and consented to the admission of the video recording of defendant'sinterrogation during the People's direct case because he believed that the video was "more goodthan bad." Counsel also explained that, since he intended to have defendant testify, it would bebetter for the People to introduce and play the video to avoid impeachment of defendant with thevideo or allegations of recent fabrication when he testified. However, the efficacy of counsel'sstrategy is, at best, questionable in view of defendant's statements toward the end of theinterrogation, which contradicted his prior rendition of events and tended to undermine hisdefense of conscious consent. Counsel conceded, among other things, that defendant'spost-Miranda statements, if in response to an uninterrupted chain of questioningpunctuated by a defective Miranda warning and waiver, might have been subject tosuppression.
The foregoing establishes that defendant had a colorable basis to argue that hispre-Miranda statements were the product of custodial interrogation in violation of hisright to counsel and that his subsequent statements were the product of an uninterrupted chain ofquestioning punctuated by a defective Miranda warning and waiver (see People v White, 10 NY3d 286,291-292 [2008], cert denied 555 US 897 [2008]; People v Chapple, 38 NY2d112, 115 [1975]). There was also a colorable basis to argue that the investigator's statementsembellished the Miranda warnings, rendering the warnings inadequate and ineffective (see People v Dunbar, 24 NY3d304, 316 [2014], cert denied 575 US 1005 [2015]). While I do not pass on whethercounsel would have ultimately succeeded in suppressing defendant's videotaped confession andrecorded phone call, I find that "a colorable basis existed for seeking suppression. Given thepotential benefit in doing so, [there was] no strategic or legitimate reason to let . . .this crucial evidence come in unabated at trial," and defendant was therefore deprived of hisconstitutional right to meaningful representation in this regard (People v Zeh, 144 AD3dat 1398; see People v Carter, 142AD3d 1342, 1343 [2016]).
Defendant was also denied meaningful representation as a result of counsel's failure toconsult with experts or call expert witnesses on his behalf to rebut key portions of the People'sproof purporting to establish that the victim was incapable of consent by reason of beingphysically helpless (see Penal Law §§ 130.35 [2]; 130.50 [2]) and thatanal sexual contact had occurred (see Penal Law § 130.00 [2] [b]). In thisregard, "it is elementary that the right to effective representation includes the right [*7]to assistance by an attorney who has taken the time to review andprepare both the law and the facts relative to the defense" (People v Droz, 39 NY2d 457,462 [1976]; accord People vOliveras, 21 NY3d 339, 346-347 [2013]). In general, failing to consult with or call awitness does not transform otherwise meaningful representation into ineffective assistance ofcounsel (see People v Olson, 162AD3d 1249, 1251 [2018], lv denied 32 NY3d 1067 [2018]; People v Mosley, 155 AD3d 1124,1128 [2017], lv denied 31 NY3d 985 [2018]). However, a defendant can establish that heor she was denied meaningful representation by his or her counsel's failure to consult with or callas a witness an expert to offer rebuttal testimony by demonstrating that "such testimony wasavailable, that it would have assisted the jury in its determination or that he [or she] wasprejudiced by its absence" (People vWashington, 122 AD3d 1406, 1407 [2014] [internal quotation marks and citationomitted], lv denied 25 NY3d 1173 [2015]; see People v Lanier, 191 AD3d 1094, 1095-1096 [2021]).
At trial, defendant denied having anal sex with the victim, but he admitted having sexualintercourse with the victim and maintained that she was conscious and had consented. The victimclaimed that she did not remember and therefore could not testify about the circumstances ofhaving sexual intercourse with defendant. The People, in order to prove physical helplessness, anelement of both rape in the first degree and criminal sexual act in the first degree (seePenal Law §§ 130.35 [2]; 130.50 [2]), presented, in addition to defendant'svideotaped interrogation, expert testimony by, among others, a toxicologist and the sexual assaultnurse examiner (hereinafter SANE) who administered the victim's sexual assault examination.The People entered the examination report into evidence without objection by the defense.According to the SANE, who cried during her testimony, the victim's injuries "were more severethan [she] has ever seen." The SANE testified that the vast amount of blood was the result of thevictim's bleeding from her injuries and the trauma to the area was unlikely the result ofconsensual sex. Trial counsel admitted at the CPL article 440 hearing that the SANE's testimonyabout the nature and extent of the victim's injuries was "particularly damaging" to the defense.Nevertheless, counsel did not consult with any experts prior to the direct testimony of thePeople's experts and did not call any expert witnesses on defendant's behalf to undermine theirfindings and conclusions. Counsel testified that he did not consult a toxicologist to demonstratethat the victim's blood alcohol content (hereinafter BAC) was lower at the time of the encounterbecause he did not think it was a viable theory based in part on his own expertise and the numberof cases in which this issue was at the forefront. Nor did counsel consult a DNA expert tostrategize a plausible alternate explanation for [*8]the victim'sanal injuries and the presence of defendant's DNA in her anus. He instead pursued an explanationthat the victim "may have had consensual or at least relations with someone else prior to[defendant], but that never went anywhere."
Robert Belloto, a forensic toxicologist, testified to, among other things, a 25% margin oferror in a BAC reading, which could have lowered the victim's BAC at the hospital from .236 to.177 or even lower. If the jury accepted such testimony, it could have found that the victim wasnot in a stupor or unconscious at the time of the incident. Susan Dantoni, a board-certifiedgynecologist with extensive experience in sexual assault examinations, and Laura Schile, aforensic scientist with a specialty in DNA, serology and evidence collection and handling, bothtestified at the hearing that, contrary to the SANE's trial testimony, the victim was not bleeding atall, the victim's injuries were not severe, and the diagnosis of "sexual assault" in the medicalrecords, which defense counsel consented to admit at trial, was scientifically impossible to makebased upon the evidence. Schile testified as to a plausible explanation for the presence ofdefendant's DNA in the victim's anus—to wit, the improper use of a speculum rather thanan anoscope, which could have transferred material from the exterior to the interior of the anus.As the record demonstrates, trial counsel did not explore the source of the blood and, instead,cross-examined the SANE about a friable cervix theory for which there was no basis in therecord. Schile explained that she would have called the jury's attention to the improper collectionand unreliability of the scientific evidence introduced by the People based upon the lack ofdocumentation, the use of an improper tool and the discarding of swabs of blood taken from thevictim's vagina. She would have advised counsel not to stipulate that the sexual offensecollection kit had been properly taken and properly secured from the victim.
The record evidence reveals that the People's summation relied heavily on the nature andextent of the victim's alleged injuries, the victim's level of intoxication and defendant'sconfession to prove that the victim was physically helpless at the time that the alleged actsoccurred. An example of the prejudice to defendant by counsel's failure to rebut the SANE'stestimony is the graphic reference to her description of the victim's injuries as being inconsistentwith defendant's claim that the victim consented. In my view, "[c]ounsel's admitted failure toinvestigate the victim's [medical issues] meant that he was unprepared to effectivelycross-examine the SANE, with disastrous consequences for defendant's case" (People vCassala, 130 AD3d at 1254; see People v Lanier, 191 AD3d at 1095-1096). Thetotality of the record reveals that, at crucial stages of the representation, trial counsel failed toconsult with and was unprepared to call medical experts [*9]tochallenge the People's scientific proof, in spite of defendant's insistence that the sexualintercourse was consensual and that no anal sexual contact occurred. The cumulative effect ofthese prejudicial failures, including counsel's failure to seek suppression of defendant'sstatements, deprived defendant of meaningful representation and his right to a fair trial (see People v Oathout, 21 NY3d127, 132 [2013]; People vTaylor, 156 AD3d 86, 96-97 [2017], lv denied 30 NY3d 1120 [2018]; Peoplev Cassala, 130 AD3d at 1253). Accordingly, I would reverse.
Ordered that the order is affirmed.
Footnote 1:The recording continued afterinvestigators left the room, and it depicts defendant making a phone call to a friend in which hemade clear that he had not raped the victim but admitted, in crude terms, that they had vigorousconsensual sex. There is some dispute as to whether the video of the call was shown to the jury,but the record shows that defendant was cross-examined regarding his crude language and thePeople referenced it in their summation. In any event, counsel objected to the admission of therecorded phone call and thereafter objected to the use of its contents on legitimate grounds, anddefendant's efforts to argue that counsel should have objected on different, legally untestedgrounds conflates "true ineffectiveness with mere losing tactics and accord[s] undue significanceto retrospective analysis" (People v Baldi, 54 NY2d at 146; accord People vBenevento, 91 NY2d 708, 712 [1998]).
Footnote 2:Counsel's discovery concernswere undoubtedly valid, as the Legislature had not yet enacted CPL article 245 to ensurethorough and prompt disclosure in criminal matters (see CPL art 245, as added by L2019, ch 59, § 1, part LLL, § 2).