| People v Brown |
| 2011 NY Slip Op 02297 [82 AD3d 1698] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dana P.Brown, Appellant. |
—[*1] Dana P. Brown, defendant-appellant pro se. Gerald L. Stout, District Attorney, Warsaw (Vincent A. Hemming of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), renderedSeptember 24, 2009. The judgment convicted defendant, upon a jury verdict, of predatory sexualassault against a child, sexual abuse in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, predatory sexual assault against a child (Penal Law § 130.96). Defendant movedpro se to dismiss the indictment on the ground that he was denied his right to a speedy trialpursuant to CPL 30.30, but he failed to contest the specific statutory exclusions on which thePeople thereafter relied. It is well settled that, "once the People identify the statutory 'exclusionson which they intend to rely,' the defendant preserves challenges to the People's reliance on thoseexclusions for appellate review by 'identify[ing] any legal or factual impediments to the use of[those] exclusions' . . . The purpose of adhering to strict rules of preservation in[that] context is to provide the court with an 'opportunity to remedy the problem and therebyavert reversible error' " (People v Goode, 87 NY2d 1045, 1047 [1996]). Defendanttherefore failed to preserve for our review his contentions regarding those exclusions. In anyevent, those contentions are without merit. The People timely announced their readiness for trialwithin six months of the commencement of the criminal action (see CPL 30.30 [1] [a]).The People correctly concede that they are chargeable with the delay between August 21, 2008,when County Court dismissed the first indictment, and September 26, 2008, when the Peopleannounced their readiness for trial on the second indictment. That delay notwithstanding, thetotal prereadiness time chargeable to the People was 40 days, and only an additional 13 days ofpostreadiness delay is chargeable to the People. "Thus, the record establishes that the total periodof time chargeable to the People is less than six months" (People v Figueroa, 15 AD3d 914, 915 [2005]).
Contrary to the further contention of defendant, the court properly refused to suppress his[*2]statements to the police. The record of the Huntleyhearing establishes that defendant was not subject to custodial interrogation and thus thatMiranda warnings were not required (see generally People v Centano, 76 NY2d837, 838 [1990]; People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US851 [1970]).
Defendant contends that he was denied a fair trial based on the testimony of a policeinvestigator with respect to the video recording that defendant showed to the victim and whichwas obtained by the investigator. Defendant failed to object to the prosecutor's comments onsummation concerning that testimony, including the prosecutor's use of the name of the videorecording, and thus his contention with respect to those comments is not preserved for our review(see People v Beggs, 19 AD3d1150, 1151 [2005], lv denied 5 NY3d 803 [2005]). Defendant also failed to preservefor our review his contention that the court failed to clarify its jury instruction regarding thattestimony inasmuch as he failed to object to that charge (see People v Nenni, 269 AD2d785, 786 [2000], lv denied 95 NY2d 801 [2000]; People v Ocasio, 241 AD2d 933[1997], lv denied 90 NY2d 908 [1997]). In any event, defendant's contentions are withoutmerit. The victim testified that she watched a certain movie at the direction of defendant, andthus the investigator's testimony that such a video recording existed was admissible to supporther testimony, and the prosecutor was permitted to comment on that evidence in summation.
Defendant also failed to preserve for our review his contention that the court permittedimproper bolstering of the victim's testimony (see People v Rodriguez, 284 AD2d 952[2001], lv denied 96 NY2d 924 [2001]; People v Dunn, 204 AD2d 919, 920-921[1994], lv denied 84 NY2d 907 [1994]). In any event, that contention is without merit.With respect to the testimony of the first witness in question, we note that the court sustaineddefendant's objection to that testimony and thus it cannot be said that the court permittedimproper bolstering through the testimony of that witness. With respect to the testimony of thesecond witness in question, we note that the witness merely testified that the victim indicated thather father was the perpetrator. Even assuming, arguendo, that the witness's testimony constitutedimproper bolstering, we conclude that the error is harmless inasmuch as the evidence ofdefendant's guilt was overwhelming and there was no significant probability that defendantwould have been acquitted but for the error (see People v Rice, 75 NY2d 929, 932[1990]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Defendant failed to preserve for our review his further contention that the first count of theindictment is duplicitous (see People vSponburgh, 61 AD3d 1415 [2009], lv denied 12 NY3d 929 [2009]; People v Pyatt, 30 AD3d 265[2006], lv denied 7 NY3d 869 [2006]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).We reject the contention of defendant in his pro se supplemental brief that he was deniedeffective assistance of counsel based on, inter alia, defense counsel's failure to move to dismissthe first count of the indictment as duplicitous. "To prevail on a claim of ineffective assistance ofcounsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimateexplanations for [defense] counsel's failure to [make such a motion]" (People v Rivera,71 NY2d 705, 709 [1988]). Here, defendant failed to meet that burden, and thus defensecounsel's purported "failure, 'without more, is insufficient to demonstrate ineffective assistance' "(People v Hibbard, 27 AD3d1196, 1197 [2006], lv denied 7 NY3d 790 [2006]; see People v Hardy, 49 AD3d1232 [2008], affd 13 NY3d 805 [2009]).
We disagree with the dissent's conclusion that "there can be no doubt that a motion todismiss counts one and two on duplicity grounds would have been successful and resulted in thedismissal of those counts." To the contrary, the court could have denied the motion and insteadgiven a jury instruction that would have "eliminated any 'danger that the jury convicted defendantof an unindicted act or that different jurors convicted defendant based on different acts' "(People v Gerstner, 270 AD2d 837, 838 [2000]; see e.g. People v Wise, 49 AD3d 1198, 1199 [2008], lvdenied 10 NY3d 940 [2008], reconsideration denied 10 NY3d 966 [2008]; [*3]Peoplev Caballero, 23 AD3d 1031, 1032 [2005], lv denied 6 NY3d 846 [2006]). Thus,defense counsel was confronted with a tactical determination regarding which course of actionwas in defendant's best interests, and defendant failed to meet his burden of establishing thatdefense counsel did not have a strategic or other valid reason for his alleged deficiency.Furthermore, where, as here, the defendant challenges defense counsel's failure, inter alia, tomake a motion, "prudence dictates that the issue of ineffective assistance of counsel be raised ina posttrial application . . . where 'a thorough evaluation of each claim based on acomplete record' can be made" (People v Zeh, 289 AD2d 692, 695 [2001], quotingRivera, 71 NY2d at 709; seePeople v Marcial, 41 AD3d 1308, 1309 [2007], lv denied 9 NY3d 878 [2007])."We further conclude on the record before us that the cumulative effect of defense counsel'salleged deficiencies, viewed in totality and as of the time of the representation, did not deprivedefendant of effective assistance of counsel" (Marcial, 41 AD3d at 1309; seegenerally People v Satterfield, 66 NY2d 796, 798-799 [1985]; People v Baldi, 54NY2d 137, 147 [1981]).
The sentence is not unduly harsh or severe. We have considered the remaining contentions ofdefendant in his main and pro se supplemental briefs and conclude that they are without merit.
All concur except Carni and Lindley, JJ., who dissent in part and vote to modify inaccordance with the following memorandum.
Carni and Lindley, JJ. (dissenting in part). We respectfully disagree with the conclusion ofour colleagues that we should not review defendant's duplicity contention as a matter ofdiscretion in the interest of justice. Inasmuch as defense counsel failed to move to dismiss thefirst and second counts of the indictment on duplicity grounds, we also disagree with themajority's conclusion that defendant received effective assistance of counsel. We thereforedissent in part.
Defendant contends that count one of the indictment, charging him with predatory sexualassault against a child (Penal Law § 130.96), was rendered duplicitous by the evidence attrial. That count alleges underlying conduct constituting criminal sexual act in the first degree(§ 130.50 [4]). Because the People charged defendant with predatory sexual assault of achild based on a single-act theory, the rule prohibiting duplicity applies (see People vKeindl, 68 NY2d 410, 420-421 [1986], rearg denied 69 NY2d 823 [1987]). Althoughcount one is not duplicitous on its face inasmuch as it alleges a single act (see CPL200.50 [3]-[7]; Keindl, 68 NY2d at 417-418), that count was rendered duplicitous by thetestimony of the victim tending to establish the commission of multiple criminal acts during theperiod of time specified in count one (see People v Bracewell, 34 AD3d 1197, 1198 [2006]; People v Dalton, 27 AD3d 779,781 [2006], lv denied 7 NY3d 754, 811 [2006]; People v Jelinek, 224 AD2d 717,718 [1996], lv denied 88 NY2d 880 [1996], cert denied 519 US 900 [1996]).Based on that evidence, "it is impossible to verify that each member of the jury convicteddefendant for the same criminal act" (Dalton, 27 AD3d at 781). Thus, because count onewas rendered duplicitous as a matter of well-settled law but defense counsel failed to move todismiss that count, the question becomes whether this Court should exercise its discretion toreview defendant's contention in the interest of justice (see CPL 470.15 [6] [a]).
The duplicity principle is designed to protect the accused against successive prosecutions inviolation of the Double Jeopardy Clauses of the US and NY Constitutions (see generallyPeople v First Meridian Planning Corp., 86 NY2d 608, 615 [1995]). "State and Federalconstitutional prohibitions against double jeopardy are deemed so fundamental that they arepreserved despite the failure to raise them at the trial level" (People v Michallow, 201AD2d 915, 916 [1994], lv denied 83 NY2d 874 [1994]). The prohibition against duplicitycontained in CPL 200.30 (1) is essential because it "furthers not only the functions of notice to adefendant and of assurance against double jeopardy, but [it] also ensures the reliability of theunanimous verdict" (Keindl, 68 NY2d at 418). We recognize that this case does notpresent a double jeopardy problem per se. Nonetheless, the fundamental and compelling reasonsbehind the duplicity principle present interest of justice and constitutional concerns that warrantour [*4]review (see People v Jones, 165 AD2d 103, 109[1991], lv denied 77 NY2d 962 [1991]). Those reasons transcend the nature of anyparticular crime or the individual characteristics of any particular defendant. Indeed, they arefundamental to our principles of justice. In light of the indisputable merit in defendant's duplicitycontention, we conclude that it should be reached—as this Court and others havepreviously done under similar circumstances (see People v Bennett, 52 AD3d 1185, 1186 [2008], lv denied11 NY3d 734 [2008]; Bracewell, 34 AD3d at 1198; see also Jones, 165AD2d at 109).
Although defendant limited his duplicity contention to count one of the indictment, it isreadily apparent that count two of the indictment, charging defendant with the single-act crime ofsexual abuse in the first degree (Penal Law § 130.65 [3]), was also rendered duplicitous bythe trial evidence.
Defendant contends in his pro se supplemental brief that he was denied effective assistanceof counsel based upon, inter alia, defense counsel's failure to move to dismiss the first count ofthe indictment as duplicitous. "A single error may qualify as ineffective assistance, but only whenthe error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fairtrial" (People v Caban, 5 NY3d143, 152 [2005]; see People v Hobot, 84 NY2d 1021, 1022 [1995]; People vFlores, 84 NY2d 184, 188-189 [1994]). To establish ineffective assistance of counsel, adefendant must "demonstrate the absence of strategic or other legitimate explanations" fordefense counsel's allegedly deficient performance (People v Rivera, 71 NY2d 705, 709[1988]). Here, there can be no doubt that a motion to dismiss counts one and two on duplicitygrounds would have been successful and resulted in the dismissal of those counts. We find nolegitimate strategic or tactical explanation for defense counsel's failure to move to dismiss thetwo most serious counts of the indictment and instead expose defendant to conviction andpossible further subsequent prosecution on one or more of the unspecified criminal sexual acts,as well as the risk of a less than unanimous jury verdict on each of the two duplicitous counts.While the majority concludes that a post-trial application and a " ' "complete record" ' " isnecessary for a thorough evaluation of defendant's contention concerning ineffective assistance ofcounsel, we see no need for such process inasmuch as the trial evidence rendered counts one andtwo patently duplicitous and thus provided a "clear-cut and completely dispositive" basis for theirdismissal (People v Turner, 5 NY3d476, 481 [2005]). We therefore conclude that, with respect to counts one and two, defendantwas denied the right to effective assistance of counsel (see generally People v Baldi, 54NY2d 137, 147 [1981]).
We would therefore modify the judgment as a matter of discretion in the interest of justiceand on the law by reversing those parts convicting defendant of predatory sexual assault against achild under count one of the indictment and sexual abuse in the first degree under count two ofthe indictment and dismissing those counts of the indictment without prejudice to the People tore-present any appropriate charges under those counts of the indictment to another grand jury.Present—Smith, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.