| People v Arnold |
| 2011 NY Slip Op 04782 [85 AD3d 1330] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gary Arnold,Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Schoharie County (Bartlett, III,J.), rendered November 4, 2009, upon a verdict convicting defendant of the crimes of criminalsexual act in the second degree (two counts), rape in the second degree (four counts) and sexualabuse in the second degree (four counts).
The victim (born in 1993) lived with her mother and Joanne Arnold (hereinafter Arnold), hermother's then-partner, until 2002 when their relationship ended. After moving out of Arnold'shouse, the victim and her younger sister continued to have regular visitation with Arnold. Atsome point thereafter, Arnold became romantically involved with defendant and, in 2004, theywere engaged to be married. In November 2005, Arnold moved into defendant's house and thevictim and her sister continued to visit her there. According to the victim, who was 12 years oldat the time, defendant began to sexually abuse her during these visits with the abuse escalatingover the next two years.
In August 2007, the victim attempted to confide in defendant's sister, who lived next door todefendant and Arnold, by slipping a note in her pocketbook that stated that someone was hurtingher. The following week, the victim revealed to defendant's sister that someone was sexuallyabusing her, but she refused to identify who. The victim then confided in her counselor about theabuse, after which an investigation ensued by the police and Child Protective Services. [*2]When the authorities arrived at the victim's school to speak withher, however, she recanted her accusations and told them nothing had happened. At theconclusion of the investigation in December 2007, the victim resumed her regular visits withArnold. In March 2008, on the same day that she became upset over certain e-mails thatdefendant had allegedly deleted from her e-mail account, the victim spoke to Arnold, confirmedher previous allegations and identified defendant as her abuser. She subsequently met with andimparted this information to her counselor, who again notified the appropriate authorities.
After the victim provided a supporting deposition to police regarding the abuse, defendantwas arrested and indicted on two counts of criminal sexual act in the second degree (seePenal Law § 130.45 [1]), four counts of rape in the second degree (see Penal Law§ 130.30 [1]) and four counts of sexual abuse in the second degree (see Penal Law§ 130.60 [2]). Following a jury trial, defendant was convicted on all counts. Defendantthereafter unsuccessfully moved to set aside the verdict on the ground that his trial counsel wasineffective. He now appeals.
Initially, defendant contends that the verdict is against the weight of the evidence. Thevictim's in-court testimony as to the alleged sexual abuse represented the sole evidence againstdefendant. She explained how she and defendant often had opportunities to be alone during hervisits with Arnold at their home, and described the six separate instances of sexual abuseallegedly perpetrated upon her by defendant between November 2005 and August 2007 at thatlocation. Upon questioning by the People, the victim testified that she initially recanted herallegations because she was afraid of losing her relationship with Arnold and defendant's sister.
In his defense, defendant presented the testimony of Arnold and his sister. Arnold testifiedthat when the children visited her, they were always in her care and never left alone with anyoneelse. She also stated that the victim was not at their home on at least two of the dates that thealleged abuse occurred, and explained that much of the house was an open space, particularly theliving room where the victim claimed that some of the abuse took place. However, Arnold alsoadmitted, consistent with the victim's testimony, that she went to sleep before defendant at times,was out of the house on Wednesdays for a few hours, and that the addition to the house, in whichat least some of the abuse allegedly took place, was separated from the rest of the home by a walland a doorway. Defendant also introduced into evidence two e-mails from the victim to hercounselor authored prior to her reaccusation, in which the victim stated that the "whole[defendant] thing is a story," that she "made [it] up" because she hates and distrusts him, and thatshe should have thought more before accusing him because she "never understood what theconsenquences [sic] would be."
Since an acquittal would not have been unreasonable in light of this evidence, we must"weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley, 69NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; see People v Danielson, 9 NY3d342, 348 [2007]; People vHoughtaling, 82 AD3d 1493, 1494 [2011]). Contrary to defendant's contention, thevictim's testimony was not so inherently unbelievable as to be unworthy of belief, and the factthat she initially recanted her accusations presented questions of credibility for the jury to resolve(see People v Reynolds, 81 AD3d1166, 1166-1167 [2011]; People v Nowinski, [*3]36AD3d 1082, 1084 [2007], lv denied 8 NY3d 989 [2007]).[FN*]According deference to those credibility determinations and viewing the evidence in a neutrallight, we cannot say that the verdict was contrary to the weight of the evidence (see People vReynolds, 81 AD3d at 1167; Peoplev Rosa, 57 AD3d 1018, 1020 [2008], lv denied 12 NY3d 762 [2009]; People v Pomales, 49 AD3d 962,963 [2008], lv denied 10 NY3d 938 [2008]; People v Frary, 29 AD3d 1223, 1225 [2006], lv denied 7NY3d 788 [2006]).
A new trial is required, however, because defendant was deprived of the effective assistanceof counsel. To prevail on a claim of ineffective assistance, a defendant must demonstrate that heor she was deprived of a fair trial by less than meaningful representation (see People vHobot, 84 NY2d 1021, 1022 [1995]; People v Miller, 63 AD3d 1186, 1186 [2009]). It is incumbentupon the defendant to demonstrate the absence of strategic or other legitimate explanations forcounsel's alleged shortcomings (see People v Benevento, 91 NY2d 708, 712 [1998];People v Rivera, 71 NY2d 705, 709 [1988]). Mindful that we "must avoid confusing 'trueineffectiveness with mere losing tactics and according undue significance to retrospectiveanalysis' " (People v Benevento, 91 NY2d at 712, quoting People v Baldi, 54NY2d 137, 146 [1981]; accord People vJones, 70 AD3d 1253, 1256 [2010]), we nevertheless conclude that defendant hassatisfied that standard here.
Here, the deficiencies in defense counsel's representation commenced from openingstatements. He failed to object to remarks by the prosecutor that improperly implied a specialknowledge or expertise regarding the behavior of abused children and which vouched for thevictim's veracity. In his opening statement, counsel promised the jury that he would put thevictim's diary, a notebook and her Myspace messages into evidence and stated that thisinformation "will just shock you," yet he never explained how this information would relate towhy the victim would falsely accuse defendant, nor did he ever attempt to introduce any of theMyspace messages into evidence. Although his attempts to introduce portions of the victim'sdiary (as well as her notebook) were thwarted by the sustained objections of the prosecutor,counsel failed to make an appropriate offer of proof or otherwise demonstrate how thisinformation was relevant to the victim's credibility. Even after counsel elicited responses fromthe victim that directly contradicted those statements in her diary, he did not attempt to impeachthe victim with such prior inconsistent statements.
Critically, although the record reveals that defense counsel's primary trial tactic was to attackthe credibility of the victim, he made no attempt to cross-examine her about the statements shehad made in her supporting deposition to police, which was significantly at odds with theaccusations she made against defendant during her trial testimony. In her supporting depositionto police, the victim claimed only that defendant had put his hand and mouth on her vagina; shenever stated that defendant ever put his penis in her vagina. Yet, during her trial testimony, thevictim accused defendant of penetrating her vagina with his penis during four of the six allegedinstances of abuse. Given that the People's case rested almost entirely upon the credibility of thevictim, we can perceive no strategic or legitimate tactical explanation for counsel's failure to[*4]impeach the victim with these prior inconsistent statementswhich, if properly utilized, may have cast doubt upon her testimony in relation to the rapecharges (see People v Cantave, 83AD3d 857, 858-859 [2011]; Peoplev Clarke, 66 AD3d 694, 697 [2009]). More importantly, the glaring discrepanciesbetween her statements in the supporting deposition and her trial testimony may haveundermined her credibility as a whole. In addition, by failing to impeach the victim with herinconsistent statements, counsel also wasted an invaluable opportunity to highlight thoseinconsistencies to the jury during his summation.
Furthermore, defense counsel's questioning of his own witnesses was directionless andlargely ineffective, and he elicited testimony that reflected badly on defendant and actually servedto bolster the victim's credibility. Moreover, counsel's summation was confused, ineffectual anddid more to advance the prosecution's case than that of his own client. Counsel misstated thefacts on a number of occasions, focused on irrelevant issues and, at one point, referred at lengthto testimony that had never been presented. His theory as to why the victim may have falselyaccused defendant made no sense and, not unexpectedly, was seized upon and debunked by theprosecutor during his closing remarks. Notably, certain comments by counsel during hissummation reflect his fundamental misunderstanding of the proof needed to convict his client ofthe charges (see People v Miller, 63 AD3d at 1187-1188; see also People v Hampton, 64 AD3d872, 876-877 [2009], lv denied 13 NY3d 796 [2009]) and resulted in devastatingconsequences to the entire defense. To this end, after counsel stated to the jury that "there arecharges in the indictment that . . . there was some type of sexual misconduct" on thepart of defendant against the victim, he then proceeded to instruct the jury that the question it hadto decide is "[w]hy did that take place" and "whether or not the actions were consensual. . . or posed a threat." Given that each and every one of the charges againstdefendant was based upon the victim's age, such activity, if it took place at all, was criminal, andwhether it was consensual or posed a threat to the victim was entirely irrelevant. Thesestatements, which were a product of counsel's failure to comprehend the nature of the criminalcharges against his client, inexplicably implied—and may have been perceived by the juryas a concession—that the alleged sexual abuse had, in fact, occurred. Tellingly, this wasthe sole element the People had to prove.
The totality of the record reveals that defense counsel engaged in a prejudicial course ofconduct throughout the trial (see People v Zaborski, 59 NY2d 863, 865 [1983]; People v Dean, 50 AD3d 1052,1053 [2008]; People v Vannoy, 174 AD2d 790, 792 [1991]). While none of these errorsor unexplained omissions on the part of counsel, standing alone, necessarily constitutesineffective assistance, the cumulative effect of counsel's actions deprived defendant ofmeaningful representation (see People v Clarke, 66 AD3d at 697; People vMiller, 63 AD3d at 1188; People vChapman, 54 AD3d 507, 511 [2008]; People v Miller, 11 AD3d 729, 730 [2004]; People vBrown, 300 AD2d 314, 315 [2002], lv denied 100 NY2d 560 [2003]; see alsoPeople v Cantave, 83 AD3d at 859).
Spain, Rose and Egan Jr., JJ., concur. Ordered that the judgment is reversed, on the law, andmatter remitted to the County Court of Schoharie County for a new trial.
Footnote *: Although defendant argues thatthe significant discrepancies between the victim's accusations in her supporting deposition andher trial testimony further demonstrate her lack of credibility, those inconsistencies were neverplaced before the jury.