| People v Cantave |
| 2011 NY Slip Op 03079 [83 AD3d 857] |
| April 12, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JeanCantave, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered June 23, 2008, convicting him of rape in the first degree and sexual abuse in the firstdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for a new trial.
On the night of November 23, 2006, the defendant allegedly raped and sexually abused ayoung woman who rented a room in his home. At trial, the complainant testified that the sexualassault against her began after the defendant knocked on her door and asked to speak to her aboutthe rent and heat. During the course of the assault, which the complainant estimated lasted one totwo hours, the defendant allegedly choked her, stabbed her with a barbeque fork, and pushed herdown the basement stairs. Inside the basement, the complainant struggled with the defendant ashe attempted to place his penis inside her vagina, but the defendant ultimately succeeded "a littlebit." The complainant further testified that, as she continued to struggle with the defendant, hetouched her breasts through her clothes. The defendant took the stand and denied having seen thecomplainant that night, and denied that he had raped, sexually abused, or assaulted her. Afterextensive deliberations and following a lengthy Allen charge (see Allen v UnitedStates, 164 US 492 [1896]), the jury returned a verdict finding the defendant guilty of rape inthe first degree and sexual abuse in the first degree.
On appeal, the defendant contends that he was deprived of his Sixth Amendment right toeffective assistance of counsel because his trial attorney failed to cross-examine the complainantabout inconsistent statements she had made to hospital personnel hours after the attack, whichindicated that she had prevented "penile-vaginal penetration" by struggling with her assailant,and that she had been penetrated with his hand rather than his penis. We agree. The fundamentalright to the effective assistance of counsel is essential to a criminal defendant's due process rightto a fair trial (see People v Caban, 5NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708, 711 [1998]). "While it istrue that an attorney's trial strategy and 'efforts should not be second-guessed with the clarity ofhindsight to determine how the defense might have been more effective' . . . wherea witness has offered prior testimony which is significantly at odds with his or her trialtestimony, the discrepancy can be used on cross-examination to cast doubt on the credibility ofthe witness" (People v Clarke, 66AD3d 694, [*2]697 [2009], quoting People vBenevento, 91 NY2d at 712; see People v Brown, 300 AD2d 314, 315 [2002]).
Here, the People's case against the defendant turned largely upon the credibility of thecomplainant, and the hospital records containing her prior inconsistent statements were receivedinto evidence and readily available to trial counsel. However, trial counsel made no attempt toimpeach the complainant at trial with her inconsistent statements regarding whether penilepenetration occurred, despite the fact that such penetration is an essential element of rape in thefirst degree (see Penal Law § 130.00 [1]; § 130.35 [1]). Furthermore,although the credibility of the complainant's testimony that she had been raped was the primaryfocus of trial counsel's brief and perfunctory summation, he failed to call to the jury's attentionthe inconsistent statements contained in the hospital records. We can perceive no strategic orlegitimate tactical explanation for defense counsel's failure to highlight, particularly in hissummation, prior inconsistent statements which, if properly utilized, may have cast doubt on thecomplainant's testimony that the defendant penetrated her with his penis, and on her entireaccount of the incident. Given the prejudicial nature of trial counsel's failures, the defendant wasdeprived of meaningful representation and, thus, a new trial is required (see People vCaban, 5 NY3d at 152; People v Benevento, 91 NY2d at 712; People v Cleophus, 81 AD3d 844[2011]; People v Danraj, 75 AD3d651, 652 [2010]; People v Clarke, 66 AD3d at 697; People v Brown, 61 AD3d 1427,1428 [2009]; People v Jeannot, 59AD3d 737 [2009]; People vAlford, 33 AD3d 1014 [2006]; People v Winston, 134 AD2d 546, 546-547[1987]).
In light of our determination, we need not reach the defendant's remaining contentions.Skelos, J.P., Eng, Austin and Cohen, JJ., concur.