| People v Salton |
| 2010 NY Slip Op 05034 [74 AD3d 997] |
| June 8, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Wayne Salton, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M.Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mullen, J.),rendered October 10, 2006, convicting him of rape in the first degree, robbery in the first degree,attempted rape in the first degree, and assault in the second degree (two counts), upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the evidence at trial demonstrated that the twoincidents for which he was charged were sufficiently alike and distinctive to establish a modusoperandi (see People v Beam, 57 NY2d 241 [1982]; People v Ramos, 37 AD3d 740, 741 [2007]; People vDockery, 215 AD2d 497 [1995]; People v Jason, 190 AD2d 689 [1993]).Accordingly, the prosecutor properly commented in her summation on the similarities betweenthe two incidents (see People vRamos, 37 AD3d 740 [2007]; People v Dockery, 215 AD2d 497 [1995];People v Jason, 190 AD2d 689 [1993]).
While the defendant is correct that there were several instances where testimony by theprosecution's witnesses constituted implicit bolstering (see People v Holt, 67 NY2d 819,821 [1986]; People v Samuels, 22AD3d 507, 508 [2005]; People v Fields, 309 AD2d 945 [2003]; People vBacenet, 297 AD2d 817, 818 [2002]), violation of the rule against bolstering does notconstitute reversible error where, as here, "the evidence of identity is so strong that there is noserious issue upon that point" (People v Fields, 309 AD2d at 946; see People vBacenet, 297 AD2d at 818).
The defendant received meaningful representation (see People v Benevento, 91NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137 [1981]). Specifically, there is nomerit to his contention that defense counsel's failure to move to sever the charges as to the twoincidents constituted ineffective assistance of counsel. "Since the offenses were properly joinedin one indictment from the outset, the court lacked the statutory authority to sever them" (People v Salnave, 41 AD3d 872,873 [2007]; see CPL 200.20 [3]; People v Bongarzone, 69 NY2d 892, 895[1987]; People v Dayton, 66 AD3d797 [2009]; People v Gaines, 293 AD2d 550, 551 [2002]). As "[t]here can be nodenial of effective assistance of trial counsel arising from counsel's failure to [*2]make a motion or argument that has little or no chance of success"(People v Caban, 5 NY3d 143,152 [2005] [internal quotation marks omitted]), failure to make a motion to sever in this case didnot result in a denial of effective assistance of counsel. For the same reason, contrary to thecontention made by the defendant in his supplemental pro se brief, the failure to request amissing witness charge regarding the brother of one of the complainants did not constituteineffective assistance of counsel (see People v Savinon, 100 NY2d 192, 196 [2003];People v Gonzalez, 68 NY2d 424, 427 [1986]).
While, contrary to the People's contention, the defendant's Brady claim (seeBrady v Maryland, 373 US 83 [1963]) was preserved for appellate review (see CPL470.05 [2]), the defendant failed to establish a Brady violation. "To establish aBrady violation, a defendant must show that (1) the evidence is favorable to thedefendant because it is either exculpatory or impeaching in nature; (2) the evidence wassuppressed by the prosecution; and (3) prejudice arose because the suppressed evidence wasmaterial" (People v Fuentes, 12NY3d 259, 263 [2009]; see Strickler v Greene, 527 US 263, 281-282 [1999])."Absent a specific request by defendant for the document, materiality can only be demonstratedby a showing that there is a 'reasonable probability' that it would have changed the outcome ofthe proceedings" (People v Fuentes, 12 NY3d at 263; see People v Bryce, 88NY2d 124, 128 [1996]; People v Vilardi, 76 NY2d 67, 73 [1990]; People vCampos, 281 AD2d 638, 639 [2001]; People v Bryant, 247 AD2d 400, 401 [1998];People v Figueroa, 213 AD2d 669 [1995]). "The mere possibility that undisclosedevidence, which was not requested, might have helped the defense or affected the outcome of thetrial does not establish materiality in the constitutional sense" (People v Figueroa, 213AD2d at 669-670; see People v Mack, 235 AD2d 548, 550 [1997]; People vAlongi, 131 AD2d 767, 768 [1987]).
Here, the subject evidence consisted of a reported statement by a nonwitness detective, whonever met or spoke with either of the two complainants, to the effect that one of the complainantswas a prostitute. A preliminary inquiry in the form of a telephone conversation with the detectiverevealed that the statement was "based on . . . speculation, and . . .lacked any probative value" (People vMitchell, 10 AD3d 554, 555 [2004]). As such, not only was it largely inadmissible ashearsay (see Cheul Soo Kang vViolante, 60 AD3d 991, 991-992 [2009]), as well as precluded by the Rape Shield Law(see CPL 60.42), but the defendant also failed to demonstrate materiality, i.e., "that there[was] a 'reasonable probability' that [the evidence] would have changed the outcome of theproceedings" (People v Fuentes, 12 NY3d at 263; see People v Bryce, 88 NY2dat 128; People v Vilardi, 76 NY2d at 73; People v Campos, 281 AD2d at 639).
The defendant's remaining contention, raised in his supplemental pro se brief, is unpreservedfor appellate review and, in any event, without merit. Dillon, J.P., Balkin, Belen and Lott, JJ.,concur.