| People v Hook |
| 2011 NY Slip Op 00106 [80 AD3d 881] |
| January 13, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert Hook,Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Warren County (Hall, J.), renderedJanuary 14, 2009, upon a verdict convicting defendant of the crimes of aggravated sexual abusein the first degree, attempted rape in the first degree, sexual abuse in the first degree, unlawfulimprisonment in the first degree and criminal possession of a weapon in the fourth degree.
While defendant was incarcerated on an unrelated charge, the victim—hiswife—informed him that she no longer wished to be married to him. Two days afterdefendant's release, the victim agreed to meet him for a conversation. She told police and severalothers, including a hospital sexual assault nurse who examined her on the following day, thatdefendant became angry with her during their meeting, sexually assaulted her and cut her genitalswith a knife. Police found defendant at the home of a third party, confiscated two knives from hisperson, and arrested him after an interview in which, among other things, defendant deniedhaving seen the victim at all on the evening in question.
The victim testified before a grand jury. Defendant was indicted for aggravated sexual abusein the first degree, attempted rape in the first degree, sexual abuse in the first degree, unlawfulimprisonment in the first degree, and criminal possession of a weapon in the fourth degree.Before trial, the victim recanted her statements implicating defendant. At defendant's jury trial,she testified that the sexual encounter was consensual and that defendant did not use a [*2]knife against her. Defendant was convicted as charged andsentenced to an aggregate prison term of 20 years, and now appeals.
Defendant's claim that his convictions were not supported by legally sufficient evidence isunpreserved, as his motion to dismiss at the close of the People's case was not based on thegrounds raised on appeal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Mann, 63 AD3d 1372,1373 [2009], lv denied 13 NY3d 861 [2009]). Nor do we find reason to reverse theconvictions in the interest of justice, as sufficient evidence was presented to support the jury'sconclusions (see People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant contends that County Court should have granted his motion to suppress evidenceobtained when the police entered the third party's home without a search warrant, resulting indefendant's warrantless arrest. At the Huntley hearing, a police investigator testified thatwhen he and two other officers went to the third party's home and asked whether defendant wasinside, the third party responded that he was not sure, but invited the officers into theresidence.[FN1]We find no reason to disturb the court's determination that the third party consented to theofficers' entry and, therefore, the search and arrest were valid (see People v Hardy, 187AD2d 810, 811-812 [1992]; see alsoPeople v Gardner, 45 AD3d 1371, 1371 [2007], lv denied 9 NY3d 1033 [2008]).
Defendant next contends that his interview by police at the third party's home was a custodialinterrogation and, thus, that his statements in response to the officers' questions were obtained inviolation of his Miranda rights. We disagree. An individual is subject to custodialinterrogation when, given the circumstances of the questioning, "a reasonable person innocent ofany wrongdoing would have believed that he or she was not free to leave" (People v Paulman, 5 NY3d 122,129 [2005]; see People v Lowin, 71AD3d 1194, 1196 [2010]). The testimony at the suppression hearing established that, uponentering the third party's residence, the officers found defendant asleep in the living room. Theyawoke him and, after asking him if he had any weapons and confiscating two knives, asked himto go outside so they could talk. Defendant declined to do so but agreed to speak in the kitchen.During the interview, defendant sat at the kitchen table with the investigator. The third party anda uniformed officer were also present, and another officer was in the adjacent living room.Although no Miranda warnings were given to defendant before or during the interview,defendant selected the location, the questioning was relatively brief, the questions were notaccusatory, defendant was not threatened, handcuffed or restrained in any way, and he did notrequest an attorney or ask for the questioning to stop. Thus, County Court properly denieddefendant's motion to suppress (seePeople v Roblee, 70 AD3d 225, 230 [2009]; People v Pouliot, 64 AD3d 1043, 1044-1045 [2009], lvdenied 13 NY3d 838 [2009]).
Finally, defendant contends that he received ineffective assistance in that his counsel failedto adequately cross-examine the victim or present an effective defense. To establish this claim,defendant was required to show that he was " 'deprived of a fair trial by less than meaningfulrepresentation; a simple disagreement with strategies, tactics or the scope of possiblecross-examination, weighed long after the trial, does not suffice' " (People v Miller, 63 AD3d 1186,1186 [2009], quoting People v Flores, 84 NY2d 184, 187 [1994]). During the victim's[*3]direct testimony, she stated that she was unwilling to testifyand felt that she was being forced to do so. She then testified that her sexual encounter withdefendant was consensual, that he did not use a knife, and that her clothing was ripped and hervagina injured when she slipped and defendant caught her to prevent her from falling. When thePeople confronted her with the inconsistent statements she had previously made to police and thegrand jury (see CPL 60.35), she claimed that she had fabricated them and had beenbribed by the People to testify.[FN2]
Defense counsel's cross-examination was notably brief. However, in view of the exculpatoryversion of events that the victim had already provided and the damage to her credibility that hadoccurred during direct examination—all of which was consistent with the defense strategydepicting the victim as an unreliable witness who had falsified her initial claims—thebrevity of the cross-examination appears to have been "a trial strategy consciously adopted bydefense counsel" (People v Toland,2 AD3d 1053, 1057 [2003], lv denied 2 NY3d 808 [2004]). Moreover, assuming thisobjective, the cross-examination was not ineffective; defense counsel further damaged thevictim's credibility by eliciting her admission that she had been criminally charged with falsifyingstatements pertaining to defendant's case. The record reveals that defense counsel engaged invigorous, effective cross-examination of the People's other witnesses, made appropriate pretrialmotions and presented a consistent defense throughout the trial; his strategic decision not topresent defense witnesses "should not be second-guessed" (People v Cruz, 61 AD3d 1111, 1112-1113 [2009]). Accordingly,we find no reason to conclude that defendant was deprived of meaningful representation (seePeople v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147[1981]).
Defendant's remaining arguments have been examined and found to be without merit.
Spain, J.P., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The third party gave testimonyconsistent with this account at trial.
Footnote 2: Defense counsel did not objectto the introduction of the victim's prior inconsistent statements, but the record reveals thatcounsel for both sides anticipated their introduction during a previous bench conference in whichthey reviewed the applicable law with County Court and agreed upon the portions of the victim'sprior statements that could be used. Defense counsel further ascertained that the court intended toprovide the jury—as it did—with a prompt and appropriate limiting instruction(see CPL 60.35 [2]).