| People v Pollard |
| 2010 NY Slip Op 01205 [70 AD3d 1403] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesPollard, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered June 9, 2008. The judgment convicted defendant, after a nonjury trial, of rape in thefirst degree and rape in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof rape in the first degree (Penal Law § 130.35 [1]) and rape in the second degree (§130.30 [1]). Contrary to the contention of defendant, Supreme Court properly refused to suppressthe statements that he made to the police after he had waived his Miranda rights andvoluntarily submitted to a computer voice stress analysis (CVSA) test. "Here, no impression thatthe [CVSA] test was omniscient was foisted upon defendant" (People v Tarsia, 50 NY2d1, 11 [1980]), and the use of the CVSA test as an interview tool did not provoke an involuntaryconfession. Indeed, although defendant made statements that may be construed as inculpatory, heconsistently denied the charges. Defendant consented to the court's determination that the policewould be permitted to testify at trial with respect to those statements without reference to theCVSA test, and we thus conclude that he waived his contention on appeal that such testimonyshould have been suppressed because it violated the "rule of completeness" (see generally People v Backus, 67AD3d 1428, 1429 [2009]). In any event, that contention is without merit. The use of theCVSA test as an interview tool did not constitute exculpatory evidence and was not necessary toprovide a complete narration of defendant's inculpatory statements (see generally People vHarris, 249 AD2d 775, 777 [1998]).
Defendant made only a general motion for a trial order of dismissal at the close of thePeople's case (see People v Gray, 86 NY2d 10, 19 [1995]), and he failed to renew hismotion after presenting evidence (see People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]). He thus failed to preserve for our review his contention thatthe evidence is legally insufficient to support the conviction. In any event, that contention iswithout merit. The victim testified in detail concerning the crimes, and other testimony,including that of defendant, corroborated her testimony, thereby satisfying "the proof and burdenrequirements for every element of the crime[s] charged" (People v Bleakley, 69 NY2d[*2]490, 495 [1987]). Viewing the evidence in light of theelements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's further contention that the verdict is against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495). Even assuming, arguendo, that a different result wouldnot have been unreasonable, we conclude that the court did not fail to give the evidence theweight it should be accorded, and there is no basis upon which to disturb the court's credibilitydeterminations (see generally id.).
Defendant failed to object to the court's questioning of both defendant and defense counsel,and he therefore failed to preserve for our review his contention that the court assumed the roleor appearance of the prosecutor (see CPL 470.05 [2]). In any event, we reject thatcontention. It is well established that a court may intervene "in order to clarify a confusing issue"(People v Arnold, 98 NY2d 63, 67 [2002]), and the court's questions to defendant withrespect to communications between the victim and defendant through MySpace and AOL instantmessaging did not constitute an abuse of discretion. The comments of the court concerning itsdiscussion in chambers with defense counsel with respect to its understanding of that testimonyand whether the People would call a rebuttal witness likewise did not constitute an abuse ofdiscretion (cf. id. at 68). We have reviewed defendant's remaining contentions withrespect to whether the court impermissibly assumed the role or appearance of a prosecutor andconclude that they are without merit.
We reject the further contention of defendant that he was denied effective assistance ofcounsel. Defendant failed " 'to demonstrate the absence of strategic or other legitimateexplanations' for [defense] counsel's alleged shortcomings" (People v Benevento, 91NY2d 708, 712 [1998]), and we conclude that "the evidence, the law, and the circumstances of[this] case, viewed in totality and as of the time of the representation, reveal that [defensecounsel] provided meaningful representation" (People v Baldi, 54 NY2d 137, 147[1981]; see Benevento, 91 NY2d at 712). Finally, the sentence is not unduly harsh orsevere. Present—Scudder, P.J., Fahey, Lindley and Green, JJ.