| People v Diotte |
| 2009 NY Slip Op 04764 [63 AD3d 1281] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jeffrey Diotte,Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered September 24, 2007, upon a verdict convicting defendant of the crimes of rape in thefirst degree (14 counts), sexual abuse in the first degree (14 counts), criminal sexual act in thefirst degree and endangering the welfare of a child.
In February 2006, defendant's alleged victim told a school official that, beginning in 2002when she was 13 years old, defendant had subjected her to sexual contact on multiple occasions.Thereafter, defendant was charged in a 62-count indictment with rape in the first degree andother sexual offenses. After a jury trial, he was convicted of 14 counts of rape in the first degreeand 14 counts of sexual abuse in the first degree, as well as single counts of criminal sexual actin the first degree and endangering the welfare of a child. Defendant appeals.
Defendant first contends that County Court improperly denied his motion for a mistrialbased on prosecutorial misconduct. During summation, the prosecutor discussed a claim bydefendant's attorney that the victim's testimony had lacked specificity as follows: "And I wouldalso suggest to you that if [defendant] really wanted to have more details, his attorney could haveasked [the victim] on cross-examination." Defendant's counsel objected claiming that theseremarks constituted improper comment on his questioning. The objection was sustained. Later inclosing, the prosecutor argued, "He denied raping [the victim]. Denied taking showers with [*2]her. But what did you expect? This isn't Perry Mason. Of coursethat's what he was going to say. But interestingly, he never denied touching [the victim] on herbreasts, and he never denied having oral sex with [the victim]. That's uncontroverted."Defendant's counsel objected and his objection was overruled.
Upon the completion of the prosecutor's summation, defendant's attorney moved for acurative instruction and, with respect to the second comment, for a mistrial. County Courtrefused to grant a mistrial but agreed to give a curative instruction. When the jury returned, thecourt began its charge as follows: "Before I begin my formal charge, I want to clarify a couple ofthings. First of all, I remind you that the burden of proof is on the People. The [d]efendant has noburden to prove or disprove anything. Secondly, I tell you that the defense counsel during thetrial has no obligation to ask any particular question of any witness. And thirdly, I tell you thatyou may not—and I repeat, not presume that if the [d]efendant did not affirmatively denya certain allegation against him that he thereby admits it. That is not the case. Thank you."County Court's subsequent full charge instructed the jury on the presumption of innocence andreiterated, in detail, that the People bore the burden of proof and that defendant was not requiredto prove his innocence. Defendant contends that a mistrial should have been granted because thecurative instruction was inadequate and the prosecutor's second comment was so damaging thatits effects could be cured only by a new trial.
Reversal is required when prosecutorial misconduct "caused substantial prejudice so that thedefendant was denied due process" (People v Weber, 40 AD3d 1267, 1268 [2007], lv denied 9NY3d 927 [2007]). In determining whether reversal is required on this ground, this Court mustconsider " 'the severity and frequency of the conduct, whether the trial court took appropriateaction to dilute the effect of the conduct and whether, from a review of the evidence, it can besaid that the result would have been the same absent such conduct' " (People v De Vito, 21 AD3d 696,700 [2005], quoting People v Tarantola, 178 AD2d 768, 770 [1991], lv denied79 NY2d 954 [1992]; accord People v Weber, 40 AD3d at 1268).
The prosecutor's second comment was improper as it could have been interpreted to shift theburden of proof to defendant to deny the allegations against him (see People v Hendrie, 24 AD3d871, 873 [2005], lv denied 6 NY3d 776 [2006]). However, County Court's curativeinstruction, given immediately thereafter, clearly advised the jury that the People, not defendant,bore the burden of proof and that defendant's failure to deny an allegation did not mean that headmitted it. The curative instruction also addressed the prosecutor's earlier objectionablecomment by informing the jury that defendant had no obligation to ask any witness any question.In order to believe that defendant bore any burden to deny allegations or question witnesses, thejury would have had to ignore not only the curative instruction, but also the detailed subsequentinstructions on the burden of proof and the presumption of innocence (see People vGetch, 50 NY2d 456, 466 [1980]). The prosecutor's two comments, though inappropriate,were "brief [and] isolated" (People v Hendrie, 24 AD3d at 873). In view of all thecircumstances, including the court's instructions, defendant's right to a fair trial was notcompromised (see People v Grady,40 AD3d 1368, 1375 [2007], lv denied 9 NY3d 923 [2007]; see also People v Roberts, 12 AD3d835, 837 [2004], lv denied 4 NY3d 802 [2005]; People v Levandowski, 8 AD3d 898, 900[*3][2004]).
Next, defendant contends that his convictions are not supported by legally sufficientevidence and are against the weight of the evidence. Viewed in a light favorable to the People,the evidence, including the testimony of the victim and an investigating officer as well asrecordings of telephone conversations between defendant and the victim, was sufficient to permita rational factfinder to conclude that the elements of the charged offenses were proven beyond areasonable doubt (see People v Cabey, 85 NY2d 417, 421 [1995]). However, givendefendant's testimony that he did not rape the victim, an alternative finding of acquittal wouldnot have been unreasonable. Therefore, this Court must "weigh the relative probative force ofconflicting testimony and the strength of conflicting inferences while according deference to thejury's opportunity to observe the witnesses" (People v Ryan, 46 AD3d 1125, 1127 [2007], lv denied 10NY3d 939 [2008]; see People v Bleakley, 69 NY2d 490, 495 [1987]). In this regard,although defendant testified that he did not rape the victim, the contradictions between histestimony and hers created credibility determinations to be resolved by the jury (see People v Littebrant, 55 AD3d1151, 1155 [2008]). Such determinations are to be given "great deference, given [the jury's]first-hand opportunity to observe and hear the witnesses" (People v Studstill, 27 AD3d 833, 834 [2006], lv denied 6NY3d 898 [2006]). "Viewing the evidence in a neutral light and according appropriate deferenceto the jury's assessment of witness credibility and demeanor," we do not find that the verdict,which depended almost wholly on credibility determinations, was against the weight of theevidence (People v Barringer, 54AD3d 442, 443 [2008], lv denied 11 NY3d 830 [2008]).
Finally, defendant contends that he received ineffective assistance of counsel in that his trialattorney failed to investigate the background of certain remarks that defendant made during hisrecorded telephone conversations with the victim in order to provide the jury with an explanationinconsistent with defendant's guilt. Whether counsel's investigations were adequate cannot beaddressed on this appeal because the claim is not developed in the record and relies on"speculation and conjecture" (People v Studstill, 27 AD3d at 835; see People vJohnson, 273 AD2d 495 [2000], lv denied 95 NY2d 854 [2000]). The record,however, does reveal that defendant's counsel provided the jury with an alternate explanation forthe remarks by arguing that the victim had lied. As otherwise presented, the record fullydemonstrates that defendant received meaningful representation from his trial counsel at allstages of the proceedings (see People v Ellis, 81 NY2d 854, 856 [1993]; People vBaldi, 54 NY2d 137, 147 [1981]).
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.