| People v Auleta |
| 2011 NY Slip Op 01903 [82 AD3d 1417] |
| March 17, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v FrancisAuleta, Appellant. |
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Mercure, J.P. Appeals (1) from a judgment of the County Court of Albany County (Rosen,J.), rendered December 3, 1998, upon a verdict convicting defendant of the crimes of rape in thefirst degree, sodomy in the first degree, criminal possession of a weapon in the second degree andcriminal use of a firearm in the first degree (two counts), (2) by permission, from an order of saidcourt (Herrick, J.), entered April 20, 2009, which denied defendant's motion pursuant to CPL440.20 to set aside the sentence, without a hearing, and (3) by permission, from an order of saidcourt, entered March 22, 2010, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment of conviction, without a hearing.
In July 1997, the 17-year-old victim reported to police that she had been raped at gunpoint bydefendant in the basement of his restaurant in the City of Albany. The victim stated that she wentto the restaurant for a job interview. While there, defendant held a gun to her neck, bound herhands and neck with apron straps or rope, and forced her to engage in oral sodomy and sexualintercourse. The victim claimed that although defendant initially threatened to kill her, heultimately let her leave after she promised both that she would not report the rape and that shewould meet defendant later that evening.
Police later responded to the restaurant and defendant, who was then driving in his car, called911 on his cell phone, and allegedly indicated that he had a gun and that he intended to [*2]either kill himself or turn himself in to the Albany police. SeveralAlbany police officers in separate, marked vehicles pursued defendant in his car, ultimatelyapprehending him by force and recovering a loaded gun from the front seat of his car. Once incustody, defendant waived his rights and signed a statement confessing that he forced the victimto have sex with him at gunpoint. A search of defendant's restaurant revealed, among otherthings, rope and apron strings in the basement and a foam mattress in a dumpster.
Thereafter, defendant was charged in an indictment with rape in the first degree, sodomy inthe first degree, criminal possession of a weapon in the second degree and two counts of criminaluse of a firearm in the first degree. Following an initial mistrial, a jury convicted defendant ascharged. County Court (Rosen, J.) denied defendant's motion to set aside the verdict, andsentenced him to 3 to 6 years on the criminal possession of a weapon conviction to runconsecutively to concurrent terms of 12½ to 25 years on the remaining counts. With thePeople's consent, defendant's motion pursuant to CPL 440.20 was granted, and his sentence wasamended to provide that all terms would run concurrently. The court (Herrick, J.) thereafterdenied defendant's additional motions pursuant to CPL 440.10 and 440.20. Defendant nowappeals from the judgment of conviction and, by permission, from the orders denying his CPL440.10 and 440.20 motions. We affirm.
Initially, we reject defendant's argument that County Court (Rosen, J.) erred in admitting, as"excited utterances," statements made by the victim to two friends shortly after escaping fromdefendant's restaurant. "An out-of-court statement is properly admissible under the excitedutterance exception when made under the stress of excitement caused by an external event, andnot the product of studied reflection and possible fabrication" (People v Johnson, 1 NY3d 302,306 [2003]; see People v Vasquez, 88 NY2d 561, 579 [1996]). In determining whetherthe statement was made prior to an opportunity to reflect or fabricate, "[t]he court must assess'not only the nature of the startling event and the amount of time which has elapsed between theoccurrence and the statement, but also the activities of the declarant in the interim' " (People vVasquez, 88 NY2d at 579, quoting People v Edwards, 47 NY2d 493, 497 [1979];see People v Brown, 70 NY2d 513, 518-519 [1987]). Here, as defendant asserts, thevictim testified that she was able to form and execute an escape plan and, after escaping, drive 10to 15 minutes in traffic to the home of Deborah Weisburgh and Joseph House, where shereported the rape. Nevertheless, Weisburgh and House testified that upon her arrival, the victimwas hysterical, crying and shaking, could not walk up the stairs without stumbling, and collapsedin a fetal position on a bed. In response to Weisburgh's questions, the victim told her that a manhad held a gun to her head and raped her on a job interview. House then called the police. Underthese circumstances, we cannot say that County Court abused its discretion in determining thatthe victim's statements to Weisburgh and House were made under the continuing stress of theordeal and, thus, admissible as excited utterances (see People v Johnson, 277 AD2d 702,704-705 [2000], lv denied 96 NY2d 831 [2001]; People v McClain, 250 AD2d871, 873 [1998], lv denied 92 NY2d 901 [1998]; cf. People v Johnson, 1 NY3d at307).
Defendant's further contention that he received ineffective assistance of counsel lacks merit.Defendant faults trial counsel for failing to retain or call a medical expert to testify. In thatregard, he provides an affidavit from a gynecologist stating that, based upon the victim's medicalrecords, "it is not possible to state whether any sexual conduct in this case was or was notconsensual." While an isolated error by otherwise competent counsel may, in rare circumstances,operate to deprive a defendant of meaningful representation (see People v Turner, 5 NY3d 476, 480-481 [2005]), "[i]t is wellsettled that the failure to call a particular witness does [*3]notnecessarily amount to ineffective assistance of counsel" (People v Muller, 57 AD3d 1113, 1114 [2008], lv denied 12NY3d 761 [2009]; see People v Hobot, 84 NY2d 1021, 1023-1024 [1995]; People v McCrone, 12 AD3d 848,850 [2004], lv denied 4 NY3d 800 [2005]). The People's medical expert testified at trialthat there was no evidence of physical trauma or injury, a fact that defense counsel highlighted oncross-examination. Inasmuch as the affidavit now proffered by defendant does not contradict thistestimony—or any other given at trial—defendant has failed to demonstrate that trialcounsel's failure to call a medical expert denied him a fair trial (see People v Hobot, 84NY2d at 1024; People v Muller, 57 AD3d at 1114-1115).
Similarly unavailing is defendant's argument that evidence recovered by police from hisrestaurant should have been suppressed because the search of the restaurant was illegal.Defendant does not dispute that a valid search warrant was issued at 1:30 a.m. on the morningafter the incident; rather, he argues that police conducted an illegal search of his restaurant a fewhours before the warrant was obtained. We note, however, that defendant offers nothing todemonstrate that such a premature search occurred. His girlfriend's testimony in that regard wasrejected at the suppression hearing as lacking credibility, and defendant's surmise based upon theabsence of entries on computer assisted dispatch records for one officer and a few fleeting,inconclusive remarks on a radio dispatch tape is insufficient. In any event, even assuming that thesearch occurred shortly before the issuance of the warrant, any evidence recovered from therestaurant was admissible pursuant to the "inevitable discovery" doctrine (see People vTurriago, 90 NY2d 77, 85-87 [1997]; People v Oldacre, 53 AD3d 675, 677 [2008]).
Next, defendant asserts that the People committed numerous Brady andRosario violations by withholding evidence that could have been used to impeach thecredibility of most of the People's witnesses. Defendant is correct that "[a] prosecutor's duty ofdisclosing exculpatory material extends to disclosure of evidence impeaching the credibility of aprosecution witness whose testimony may be determinative of guilt or innocence" (People vBaxley, 84 NY2d 208, 213 [1994]; see People v Monroe, 17 AD3d 863, 864 [2005]). Nonetheless, adefendant seeking to establish a Brady violation must show that "prejudice arose becausethe suppressed evidence was material" (People v Fuentes, 12 NY3d 259, 263 [2009]). Defendant concedesthat, given the procedural posture of this case, materiality must "be demonstrated by a showingthat there is a 'reasonable probability' that [the evidence] would have changed the outcome of theproceedings" (id.). To establish a Rosario violation, a defendant must show thatthe People failed "to disclose [a] recorded statement in [their] possession or control made by aperson [they] intend[ed] to call to the stand, which relate[d] to the subject matter of the witness'testimony" (People v Williams, 50AD3d 1177, 1178-1179 [2008] [internal quotation marks and citation omitted]). ARosario violation will lead to reversal only if there is a "reasonable possibility" thatnondisclosure contributed to the verdict (id. at 1179 [internal quotation marks omitted];see People v Tucker, 40 AD3d1213, 1215 [2007], lv denied 9 NY3d 852 [2007]).
Here, the probative value of the majority of the evidence referred to by defendant—aphotograph of an officer in defendant's restaurant that is not time-stamped, a computer- assisteddispatch record, police interdepartmental correspondence that shows minor inconsistenciesregarding the timing of one officer's arrival at the scene of defendant's arrest, jail records, and a911 audiotape that was consistent with the testimony offered at trial—is entirelyspeculative and there is no reasonable probability that such evidence would have impacted thejury's verdict (see People v Thomas,38 AD3d 1134, 1137 [2007], lv denied 9 NY3d 852 [2007]; People v Crandall, 38 AD3d 996,997 [2007], lv denied 9 NY3d 842 [2007]). Furthermore, while the [*4]People admit that the failure to turn over the interdepartmentalcorrespondence of Officer William Warner constituted a Rosario violation inasmuch asWarner testified at trial, there is no reasonable possibility that disclosure of that document wouldhave led to a different verdict. Although the document is inconsistent in minor respects withWarner's direct testimony regarding the chain of events leading up to defendant's arrest afterpolice pursued his vehicle, the limited utility of the document as impeachment evidence isimmaterial given the overwhelming physical evidence corroborating the victim's version ofevents (see People v Crandall, 38 AD3d at 997; see also People v Fuentes, 12NY3d at 264-265).
Finally, while we agree with defendant that County Court (Herrick, J.) erred in denying hisCPL 440.10 motion on the ground that he failed to raise the issues presented in his prior CPL440.20 motion (see CPL 440.10 [3] [c]), the court went on to properly deny the motionon the merits. Contrary to defendant's argument, the court was not required to summarily granthis CPL 440.10 and 440.20 motions—or hold hearings on the motions—simplybecause the People did not controvert every allegation made by defendant (see CPL440.30 [1]; People v Hoffler, 74AD3d 1632, 1635 n 4 [2010]; People v Vasquez, 287 AD2d 334, 334-335 [2001],lv denied 97 NY2d 709 [2002]). Defendant's remaining claims have been considered andfound to be lacking in merit.
Spain, Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment and orders areaffirmed.