| People v Cortez |
| 2011 NY Slip Op 04595 [85 AD3d 409] |
| June 2, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v PaulCortez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered March 23, 2007,convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to aterm of 25 years to life, affirmed.
Defendant was not deprived of his right to conflict-free counsel. Defendant asserts that bothof the attorneys who represented him at trial operated under conflicts between their own interestsand those of their client. However, we find that, at most, only one attorney had a conflict, thatdefendant validly waived this conflict, and that there is no record evidence of prejudice.
At the outset of the trial, the court held defendant's lead attorney in contempt and imposed afine for her unjustified failure to appear. This was not enough to create a conflict. Defendant'sclaim that the contempt citation would have placed the attorney in fear of further antagonizingthe court and would have inhibited her ability to zealously defend her client rests on speculationand is unsupported by anything in the record.
At the time of trial, there was an unrelated criminal case pending in the same county againstdefendant's other attorney. Since the attorney was not accused of any crime relating to thecharges against defendant, the conflict was waivable (see e.g. United States vPerez, 325 F3d 115, 125-127 [2d Cir 2003]). After the court conducted a sufficient inquirypursuant to People v Gomberg (38 NY2d 307 [1975]), defendant made a valid waiver ofthe conflict, and we reject defendant's arguments to the contrary.
In any event, the existing record is insufficient to show that the conduct of the defense wasaffected by the operation of either or both of these alleged conflicts of interest (see People v Konstantinides, 14 NY3d1, 10-13 [2009]; People v Longtin, 92 NY2d 640, 644-645 [1998]). Defendantasserts that his attorneys mishandled various aspects of the extensive forensic evidence againsthim, by failing to take certain investigative steps and otherwise. Whether these claims are viewedas evidence that the conflict or conflicts operated on the defense, or as general ineffectiveassistance of counsel claims, they are unreviewable on direct appeal, and thus procedurallydefective, because they involve matters outside the record (see People v Rivera, 71 NY2d705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). If the attorneys reasonablybelieved that the lines of attack on the prosecution's forensic evidence suggested by defendant on[*2]appeal would have been futile or counterproductive, theirconduct would not have fallen below an objective standard of reasonableness. Similarly, if theselines of attack would have actually been futile or counterproductive, counsel's failure to pursuethem would not have been prejudicial. Accordingly, the present, unexpanded record, which issilent as to these matters, fails to satisfy either the reasonableness or prejudice prongs containedin either the state or federal standards (see People v Benevento, 91 NY2d 708, 713-714[1998]; see also Strickland v Washington, 466 US 668 [1984]).
The court's ruling regarding evidence of defendant's journal entries does not warrant reversal.Defendant does not challenge entries relating to his antagonism toward the victim, who was hisformer girlfriend, but challenges the introduction of entries pertaining to two other women. Attrial, he only argued that this constituted evidence of uncharged crimes or bad acts. However, thatargument was meritless, because the entries only reflected hostile thoughts (see generallyPeople v Flores, 210 AD2d 1, 2 [1994], lv denied 84 NY2d 1031 [1995]).Defendant's remaining contentions concerning this evidence are unpreserved and we decline toreview them in the interest of justice. As an alternative holding, we find no basis for reversal. Inthe context of this case, defendant's hostility toward women, not limited to the victim, had abearing on motive and was not unduly prejudicial (see People v Moore, 42 NY2d 421,428 [1977]). In any event, any error regarding the receipt of this evidence, or the absence of alimiting instruction, was harmless in light of the overwhelming evidence of guilt.
One of the many links in the chain of circumstantial evidence against defendant wasprovided by a witness who did not identify him in court, but gave a detailed description of theman she saw on a relevant occasion. Since defendant matched the description, the evidence wasplainly admissible, and defendant's arguments go to the weight to be accorded the evidence, notits admissibility (see generally People v Mirenda, 23 NY2d 439, 452-454 [1969]).Defendant also argues that the court unduly restricted his cross-examination of this witness.However, by failing to make an offer of proof, and by acquiescing in the court's ruling, he failedto preserve that claim, including his constitutional argument (see People v George, 67NY2d 817, 819 [1986]), and we decline to review it in the interest of justice. As an alternativeholding, we find no violation of defendant's right of confrontation (see Delaware v VanArsdall, 475 US 673, 678-679 [1986]).
Of defendant's challenges to the prosecutor's summation, the only one that is arguablypreserved is his claim that the prosecutor ended his summation with an improper appeal to thejury's emotions. Although we find that the prosecutor's rhetoric was excessive, we find the errorto be harmless. By failing to object, by making general objections or objections that did notarticulate the grounds asserted on appeal, or by failing to request further relief after the court tookcurative actions, defendant failed to preserve his remaining summation claims, and we decline toreview them in the interest of justice. As an alternative holding, we find that most of thechallenged remarks were generally permissible, and that the court's curative actions weresufficient to prevent defendant from being prejudiced by any improprieties (see People vOverlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People vD'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). Inany event, any errors were likewise harmless. In particular, we note that the evidence clearlysupported the conclusion that defendant left his fingerprint in the victim's blood, which hadspattered on a wall of her apartment, and it refuted the theory that this was a latent fingerprint leftby defendant on a previous visit, over which the blood had spattered. Accordingly, it was entirelyproper for the prosecutor to make [*3]summation argumentsalong these lines. Moreover, the fingerprint itself provided evidence of defendant's guilt, andwhen combined with an extensive amount of other circumstantial evidence, it providedoverwhelming evidence of defendant's guilt. Concur—Andrias, J.P., Saxe, Moskowitz andAcosta, JJ.
Freedman, J., concurs in a separate memorandum as follows: I write only to emphasize myconcern with the aspect of the prosecutor's summation where he connected defendant's diaryentries from 1999 and 2000 regarding former girlfriends to what happened to the victim here.The prosecutor claimed that these diary entries, of questionable relevance, demonstrated thatdefendant had become increasingly more "hostile to women," and that previous rejections hadcaused a "murderous rage" to develop in defendant. I believe that these "psychological opinions"went beyond fair comment on the evidence.