| People v Borthwick |
| 2008 NY Slip Op 04397 [51 AD3d 1211] |
| May 15, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RussellBorthwick, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Thomas F. Garner of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Schoharie County (Bartlett III,J.), rendered October 19, 2005, upon a verdict convicting defendant of the crimes of rape in thefirst degree (four counts) and incest (two counts).
Defendant was charged by indictment with numerous counts of rape in the first degree,sexual abuse in the first degree, incest and endangering the welfare of a child, all of whichinvolved allegations that on two separate occasions in 1992, he sexually assaulted aneight-year-old girl.[FN1]After a jury trial, defendant was convicted of four counts of rape in the first degree and [*2]two counts of incest and was sentenced to an aggregate prison termof 16
Defendant raises a number of issues in this appeal, including that his conviction was notsupported by the weight of the evidence, he did not receive the effective assistance of counseland that County Court, by its conduct, forced the jury to abruptly terminate its deliberations andrender its verdict. For the reasons that follow, we disagree with each of these contentions andaffirm defendant's conviction.
As for defendant's claim that his convictions were against the weight of the evidence, therecord establishes that three witnesses testified at trial—the victim and two state trooperswho interviewed defendant about the victim's complaint. The victim testified that in the summerof 1992, when she was eight years old, she was playing in the backyard and was called into thehouse by defendant. The victim alleged that, once inside, defendant grabbed her by the hair andarm and forced her onto his bed. She attempted to resist but he held her face down on the bed,removed her shorts and underwear and had sexual intercourse with her. The victim testified thatshe was in "so much pain" and that afterwards there was blood on her legs. She recalled thatdefendant then took her to the bathroom and put her under the shower to remove the blood fromher legs. She also testified that when she complained of the pain and told defendant that she didnot feel well, he told her to stop crying and threatened her. Specifically, she recalled defendanttelling her that he would hurt or kill her or her mother if she ever told anyone about what hadhappened.
The victim also testified that later that same summer, she was outside playing with friendswhen defendant once again called her into the house. As she entered his room, defendant forcedher onto his bed and, when she tried to resist, he slapped her. He then unclothed her and hadsexual intercourse with her. Once again, defendant threatened the victim and warned her not todisclose to anyone what had occurred. The victim acknowledged that 10 years later, in 2003, she,for the first time, disclosed the allegations of defendant's assaults in conversations she had withher high school teachers and a guidance counselor. These officials, in turn, notified the StatePolice, who immediately commenced an investigation.
After a series of interviews with the victim, the investigators attempted to arrange a meetingwith defendant. After defendant failed to respond to numerous messages asking him to contactthe State Police, the investigators went to his place of work, introduced themselves, tolddefendant that they needed to talk to him about a complaint that had been made and asked him toaccompany them to State Police headquarters. He agreed to go and, upon his arrival, was givenMiranda warnings and asked to sign a form indicating that he was aware of and wasprepared to waive his constitutional rights. After defendant signed the form and agreed toparticipate in the interview, he was told, for the first time, who the victim was and that she hadmade a complaint against him. In response, defendant is alleged to have stated that "if this isabout sex, I am going [*3]to deny it right now." Bothinvestigators testified that at that point of the interview they had simply identified the victim andindicated to defendant that she had made a complaint against him; nothing had been stated todefendant that the complaint had sexual overtones or was of a sexual nature. "Viewing theevidence in a neutral light and weighing the probative force of the conflicting testimony and therelative strength of any conflicting inferences which may be drawn, as well as giving duedeference to the jury's credibility assessments" (People v Pomales, 49 AD3d 962, 963 [2008] [citations omitted];see People v Jackson, 48 AD3d891, 892 [2008]), we disagree with defendant's claim that the verdict convicting him of rapein the first degree and incest was against the weight of the evidence (see People vBleakley, 69 NY2d 490, 495 [1987]; see also People v Romero, 7 NY3d 633, 643 [2006]).
Defendant contends that the victim's testimony is so inherently incredible as to be totallyunworthy of belief. In support of this contention, he points to the 10-year delay between thealleged sexual assaults and the victim's initial disclosure of the assaults to officials at her highschool. Defendant also recounts inconsistencies in the victim's recollection of the underlyingfacts, yet these inconsistencies were fully developed at trial. The jury was well aware of thesearguments and, by its verdict, chose to reject them (see People v Bruno, 47 AD3d 1064, 1066 [2008], lv denied10 NY3d 809 [2008]). The victim's reluctance, given the context within which these sexualassaults were alleged to have occurred, could well account for her delay in reporting them. Theinconsistencies that exist in her recollection of the events in question are certainly understandablegiven the victim's age at the time of the incidents and the 13-year gap between when the assaultsare alleged to have occurred and when the victim was called to testify about them at trial.Moreover, the inconsistencies in question focus on the victim's recollection as to the identity ofthe children who were playing in the backyard when the first incident occurred and herrecollection that one of the attacks took place in "early summer" as opposed to June or July. Suchinconsistencies, given the attendant circumstances, do not measure up to the type of disclosureswhich would render a witness's testimony incredible as a matter of law or establish a basis "uponwhich to disturb [the jury's] resolution of these credibility issues" (People v Campbell, 17 AD3d 925,926 [2005], lv denied 5 NY3d 760 [2005]; see People v Perkins, 27 AD3d 890, 892 [2006], lvs denied6 NY3d 897 [2006], 7 NY3d 761 [2006]). More importantly, the evidence submitted attrial—the victim's testimony and the statement attributed to defendant by the StatePolice—establish a credible basis for the jury's guilty verdict. In addition, nothing has beensubmitted by way of credible evidence that would ascribe to the victim a motive to fabricatethese allegations against this defendant, and his statement to the police constitutes compellingcorroboration for the victim's claim that defendant had, in fact, sexually assaulted her.Accordingly, it cannot be said that the convictions are not supported by the weight of the credibleevidence offered at trial (see People vColvin, 37 AD3d 856, 857 [2007], lv denied 8 NY3d 944 [2007]).
Defendant's complaints regarding counsel's representation have been reviewed and simplyfail to establish that defendant was denied meaningful assistance of trial counsel (see Peoplev Baldi, 54 NY2d 137, 147 [1981]; People v Rodabaugh, 26 AD3d 598, 600 [2006]). Specifically, heclaims that his trial counsel failed to file a motion to preclude the statement that he is alleged tohave made to the State Police at the time of their initial interview and that counsel's failure to doso rendered his assistance ineffective. We disagree. Defense counsel, at the outset of theseproceedings, filed an omnibus motion that included a motion to suppress any statements soughtto be introduced into evidence by the prosecution which was claimed to have been made bydefendant to law enforcement authorities. Upon learning, albeit belatedly, that the prosecutionintended to use defendant's statement to the State Police at trial, counsel moved to [*4]withdraw the motion to suppress or, alternatively, convert it to amotion to preclude based upon the prosecution's failure to comply with the notice provisionscontained in CPL 710.30. County Court refused to allow counsel to withdraw the motion and,instead, proceeded with the Huntley hearing.[FN2]Initially, counsel indicated that he would not participate in the Huntley hearing because todo so would compromise his position in a motion to suppress (see People v Kirkland, 89NY2d 903, 904 [1996]; People v Barton, 301 AD2d 747, 748 [2003], lvs denied99 NY2d 625 [2003], 1 NY3d 539 [2003]). However, counsel ultimately decided to participate inthe hearing because of the obvious impact the statement would have on defendant's position attrial.
Moreover, defense counsel was well aware, at the time that he sought to suppress thisstatement, that the general purpose of CPL 710.30 "is to inform a defendant that the Peopleintend to offer evidence of a statement to a public officer at trial so that a timely motion tosuppress the evidence may be made" (People v Rodney, 85 NY2d 289, 291-292 [1995];see People v Chase, 85 NY2d 493, 499-500 [1995]; People v Wilhelm, 34 AD3d 40, 44 [2006]). While we recognizethat the absence of prejudice does not serve to excuse the People's failure to comply with thenotice provisions of CPL 710.30, the fact that defendant was aware of the contents of the allegedadmission and had an opportunity to move to suppress it indicates that counsel was faced with adifficult choice (see People vMartinez, 9 AD3d 679, 680 [2004], lv denied 3 NY3d 709 [2004]; People vScott, 204 AD2d 995, 995 [1994], lv denied 84 NY2d 939 [1994]) and we are notprepared to say that his decision to proceed with the motion to suppress deprived his client of theeffective assistance of counsel (see People v Baldi, 54 NY2d at 147; People vRodabaugh, 26 AD3d at 600; People v Gross, 21 AD3d 1224, 1225 [2005]).
Also, defendant claims that counsel's failure to have defendant testify at trial rendered hisassistance ineffective. We note that we do not know the circumstances under which the decisionwas made not to have defendant testify at trial and, therefore, it is outside the scope of this record(see People v Callender, 48 AD3d976, 978 [2008]; People vMann, 41 AD3d 977, 982 [2007], lv denied 9 NY3d 924 [2007]; People vParker, 220 AD2d 815, 817 [1995], lv denied 87 NY2d 1023 [1996]). In any event,the decision whether a defendant will testify at trial is a strategic one to be made by defendant inconsultation with counsel (see People v Terry, 309 AD2d 973, 974 [2003]). Moreover,defendant had testified before the grand jury and much of his testimony in that proceeding wasestablished through the introduction of other evidence at trial. For example, defense counsel wasable to elicit through the cross-examination of witnesses who testified at trial that defendant hadsteadfastly denied the allegations that he had sexually assaulted the victim, he had no priorcriminal record, no other allegation of a sexual assault had ever been made against him, he wasactively involved in his church and he was an active participant in his seven children'safter-school activities. We also note that defendant's grand jury testimony was riddled withinconsistencies with other testimony before the grand jury which, if fully developed at trial, couldwell have had an adverse impact upon his credibility. Accordingly, we cannot conclude that thedecision not to have defendant testify at trial amounted to ineffective assistance of counsel (see People v Lowin, 36 AD3d1153, 1156 [2007], lvs denied 9 NY3d 847, 878 [2007]; People v Coleman,296 AD2d 766, 768 [2002], lv denied 99 NY2d 534 [2002]).[*5]
Finally, we disagree that County Court improperlyinjected itself into the jury's deliberations or in any way pressured the jury to arrive at a verdictby telling the jury that if it did not reach a final decision within 20 minutes, the court wouldadjourn the trial for the weekend (see People v Randall, 9 NY2d 413, 425 [1961];Hill v Edinger, 281 App Div 1052, 1053 [1953]; compare People v Carter, 40NY2d 933, 934 [1976]). County Court repeatedly told the jury in this instruction that it was notpressuring the jury to arrive at a verdict, the jury should take whatever time it needed todeliberate before arriving at a verdict and, since it was 6:00 p.m. on a Friday evening, the courtwould adjourn for the weekend and allow the jury to resume deliberations the following Mondaymorning. The court's instructions, under all of the circumstances, were not improper.
Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Initially, defendant was chargedin a 101-count indictment stemming from allegations that defendant had continuously raped thevictim for many years. A superceding indictment was filed, charging defendant with, amongother things, 28 counts of rape in the first degree. Defendant pleaded guilty to 12 counts of sexualabuse in the first degree for a negotiated prison sentence of six months and postreleasesupervision. However, County Court refused to honor the plea agreement when the victimobjected to the proposed sentence and defendant refused to acknowledge his guilt in thepresentence investigation report. As a result, defendant was allowed to withdraw his plea and thematter proceeded to trial.
Footnote 2: Tellingly, defendant does notargue now on appeal that this ruling was in error.