| People v Guay |
| 2010 NY Slip Op 02877 [72 AD3d 1201] |
| April 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dean A.Guay, Appellant. |
—[*1]
Garry, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered March 31,2008 in Clinton County, upon a verdict convicting defendant of the crimes of rape in the firstdegree, sexual abuse in the first degree and endangering the welfare of a child.
The victim (born in 1997) disclosed to a school counselor that defendant had sexuallymolested her. After making an oral confession to police, defendant was indicted on charges ofrape in the first degree, sexual abuse in the first degree, and endangering the welfare of a child.He was convicted on all three counts following a jury trial at which the victim testified, andsentenced to concurrent prison terms of 20 years with 10 years of postrelease supervision forrape in the first degree, seven years with five years of postrelease supervision for sexual abuse inthe first degree, and one year for endangering the welfare of a child. Defendant now appeals.
Initially, defendant contends that Supreme Court erred in dismissing for cause a prospectivejuror on the basis of a hearing impairment. A prospective juror whose hearing is impaired mayserve if the trial court determines that the juror is "capable of doing what jurors are supposed todo" (People v Guzman, 76 NY2d 1, 5 [1990]; see CPL 270.20 [1] [a]; JudiciaryLaw § 510). "[T]he determination whether a hearing-impaired person can providereasonable jury service in a given case must be left largely to the discretion of the trial court,which can question [*2]and observe the prospective juror. . . during the voir dire" (People v Guzman, 76 NY2d at 5; see People vWilliams, 63 NY2d 882, 885 [1984]). During jury selection, the juror stated that he washaving difficulty hearing. Asked whether he would have difficulty during the trial if the partieskept their voices raised, he responded, "I'm pretty good right here in the front." However, thecourt determined that the prospective juror's hearing impairment was sufficiently severe todisqualify him from service, basing this conclusion on the juror's statements together withobservation of his nonverbal reactions to questions, which indicated, in the court's view, that hehad more difficulty in hearing than he expressed. The court further expressed concern that childwitnesses often speak softly, and concluded that the prospective juror was likely to havedifficulty hearing the young victim's testimony. With due deference to Supreme Court's ability tomake the observations upon which this determination must be based, we find no abuse of itsconsiderable discretion in this matter. Further, as no party, including the prospective juror,requested accommodations such as hearing aids or an interpreter, the court did not err in failingto consider whether such accommodations would have enabled the juror to serve.[FN1]
Next, defendant contends that he was deprived of a fair trial by prosecutorial misconduct inthe form of allegedly improper comments made by the prosecutor during voir dire andsummation. During voir dire, Supreme Court sustained objections to two questions that theprosecutor framed in a way that impermissibly interjected her own opinions (see People vBailey, 58 NY2d 272, 277 [1983]; People v Fairley, 63 AD3d 1288, 1289 [2009], lv denied13 NY3d 743 [2009]), thereby limiting any resulting prejudice (see People v Weber, 40 AD3d1267, 1268 [2007], lv denied 9 NY3d 927 [2007]). The remaining challenges nowraised were not preserved for appellate review by appropriate objections (see People v Williams, 8 NY3d854, 855 [2007]; People vAdams, 39 AD3d 1081, 1083 [2007], lv denied 9 NY3d 872 [2007]). In anyevent, most of the challenged remarks during voir dire were appropriately directed atdetermining the prospective jurors' views on credibility issues likely to be presented at trial. Asfor the summation, if any of the challenges defendant now raises had been preserved for ourreview, we would find that the majority of the challenged remarks "were within the broadlatitude permitted to the prosecutor in responding to defense counsel's summation" (People v Wilhelm, 34 AD3d 40,54 [2006] [internal quotation marks omitted]). A few comments in which the prosecutorimpermissibly offered her personal views of the evidence or, in one case, improperly vouchedfor the victim's credibility (see id. at 54-55), were not so egregious, when viewed in thecontext of the summation as a whole, to establish a " 'flagrant and pervasive pattern' ofmisconduct" sufficient to deprive defendant of a fair trial (People v Hunt, 39 AD3d 961, 964 [2007], lv denied 9NY3d 845 [2007], quoting People vMcCombs, 18 AD3d 888, 890 [2005]).
Defendant next contends that, in several instances, Supreme Court improperly permitted thePeople to elicit opinion testimony regarding the victim's credibility (see People vCiaccio, 47 [*3]NY2d 431, 439 [1979]). Upon theprosecutor's redirect examination, a Child Protective Services caseworker was asked for hisopinion of the victim's credibility. Defense counsel had opened the door to such questioning byasking the caseworker whether, in his previous work experience, he had known children to beuntruthful, so his objection was properly overruled (see People v Lamphier, 302 AD2d864, 865 [2003], lv denied 99 NY2d 656 [2003]; see generally People v Conway,297 AD2d 398, 399 [2002], lv denied 99 NY2d 581 [2003]). The remaining claims nowpresented were not preserved. In any event, the testimony of the victim's mother did notconstitute impermissible opinion testimony and, although no curative instruction was requestedor given when a police investigator gave her opinion of the victim's credibility after defendant'sobjection had been sustained, the court's final instructions to the jury included a direction todisregard any such testimony (seePeople v Colvin, 37 AD3d 856, 858 [2007], lv denied 8 NY3d 944 [2007];see also People v Corey, 233 AD2d 773, 774 [1996], lv denied 89 NY2d 984[1997]).
Defendant next contends that he received the ineffective assistance of counsel as the result ofmultiple alleged errors by his trial attorney. Contrary to defendant's claim in this regard, defensecounsel did not err in failing to object to the expert qualifications of a nurse practitioner whotestified for the People, since she had completed the appropriate education, was board certified,and had considerable experience as a specialist in the area of obstetrics and gynecology (seePeople v Munroe, 307 AD2d 588, 591-592 [2003], lv denied 100 NY2d 644 [2003]).Further, although defense counsel's cross-examination of the nurse practitioner was brief, it wasnot entirely ineffective. Defendant's claim that his attorney should have challenged the medicalevidence by obtaining colposcopic photographs or an independent medical examination of thevictim is unsupported by any demonstration that these would have yielded favorable results andis essentially a disagreement with trial strategies and tactics (see People v Hamms, 55 AD3d 1142, 1145 [2008], lvdenied 11 NY3d 925 [2009]). In regard to counsel's failure to object to allegedly improperremarks by the prosecutor, we find (as addressed above) that most of these remarks were notimproper, and counsel did successfully object to several that were. The representation was noterror free; defendant correctly notes that his attorney's mid-trial claim that he was served withonly one page of the People's five-page CPL 710.30 statement demonstrated an inexplicable lackof familiarity with the document's contents, especially as the statement had been extensivelydiscussed before trial during a Huntley hearing.[FN2]Further, as defendant notes, at sentencing his attorney failed to recognize and call to the court'sattention its improper imposition of postrelease supervision. However, "our Constitution'guarantees the accused a fair trial, not necessarily a perfect one' " (People v Turner, 5 NY3d 476,480 [2005], quoting People v Benevento, 91 NY2d 708, 712 [1998]). To prevail upon aclaim of ineffective assistance, "defendant must demonstrate that his attorney failed to providemeaningful representation" (People vCaban, 5 NY3d 143, 152 [2005]; see People v Lee, 66 AD3d 1116, 1120 [2009]). Defense counselmade appropriate pretrial motions, raised well-founded, successful objections, and presented aconsistent theory of defense throughout the trial that challenged the victim's veracity andportrayed defendant's oral confession as the product of duress (see People v Madison, 31 AD3d974, 975 [2006], lv denied 7 NY3d 868 [2006]). Viewing "the evidence, the law,and the circumstances of [the] particular case . . . in totality and as of the time ofthe [*4]representation," we find that defendant receivedmeaningful representation (People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, as the People concede, defendant's sentence is illegal in that the periods ofpostrelease supervision imposed by Supreme Court were apparently based on the ranges set outin Penal Law § 70.45 (2-a); this section is inapplicable to defendant's 2005 offenses(see Penal Law § 70.45 [2-a], as added by L 2007, ch 7, § 33]). The courtshould have imposed postrelease supervision based on the ranges set out in Penal Law §70.45 (former [2]). Remittal for resentencing is necessary as it is not possible to discern whatperiods of postrelease supervision the court would have imposed (see People v Warner, 69 AD3d1052, 1054 [2010]). In view of this determination, defendant's claim that his currentsentence is harsh and excessive is academic (see id.; see also People v Mosley, 54 AD3d 1098, 1099 [2008]).
Peters, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentences imposed; matter remitted to the Supreme Courtfor resentencing; and, as so modified, affirmed.
Footnote 1: We do not address defendant'sclaim that disqualification of the prospective juror violated title II of the Americans withDisabilities Act (see 42 USC § 12131 et seq.). Defendant is not a"qualified individual with a disability" (42 USC § 12131 [2]), and lacks standing to invokethe Americans with Disabilities Act on the prospective juror's behalf (cf. Matter of Rivera v New York CityHous. Auth., 60 AD3d 509, 510 [2009]; Willson v Association of Graduates of theU.S. Military Academy, 946 F Supp 294, 296 [SD NY 1996]).
Footnote 2: When this claim was made,Supreme Court interrupted the trial to conduct a hearing, after which it concluded that defensecounsel had been served at arraignment with a complete copy of the same five-page CPL 710.30notice filed with the court.