| People v Bernardez |
| 2011 NY Slip Op 05292 [85 AD3d 936] |
| June 14, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v VictorBernardez, Appellant. |
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Appeal by the defendant, by permission, from an order of the County Court, WestchesterCounty (Zambelli, J.), dated June 28, 2010, which denied his motion pursuant to CPL 440.10 tovacate a judgment of the same court rendered June 3, 2008, convicting him of burglary in thesecond degree, sexual abuse in the first degree, and unlawful imprisonment in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
Pursuant to CPL 440.10, "[a]t any time after the entry of a judgment, the court in which itwas entered may, upon motion of the defendant, vacate such judgment upon the ground that. . . [it] was obtained in violation of a right of the defendant under the constitutionof this state or of the United States" (CPL 440.10 [1] [h]). Here, the defendant claims that thejudgment of conviction was obtained in violation of his right to the effective assistance ofcounsel, a right guaranteed "under both the federal and the state constitutions" (People v Bodden, 82 AD3d 781,783 [2011], citing US Const Amend VI; NY Const, art I, § 6 [additional citation omitted]).
In that regard, under the federal standard, to prevail on a claim of ineffective assistance ofcounsel, a "defendant must show that counsel's representation fell below an objective standard ofreasonableness" (Strickland v Washington, 466 US 668, 688 [1984]), and "that there is areasonable probability that, but for counsel's unprofessional errors, the result of the proceedingwould have been different" (id. at 694; see People v Bodden, 82 AD3d at 783).Under the New York State standard for the effectiveness of counsel, "[s]o long as the evidence,the law, and the circumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation, the constitutionalrequirement will have been met" (People v Baldi, 54 NY2d 137, 147 [1981]; seePeople v Bodden, 82 AD3d at 783). The focus of the New York standard is on "the fairnessof the process as a whole rather than its particular impact on the outcome of the case" (Peoplev Benevento, 91 NY2d 708, 714 [1998]). In that regard, the New York standard isconsidered to offer "greater protection than the federal test" (People v Caban, 5 NY3d 143, 156 [2005]) and, as such, where adefendant fails to establish that he or she was deprived of meaningful representation under theNew York Constitution, the defendant's federal [*2]constitutionalchallenge will necessarily fail (id.).
Here, there is no merit to the defendant's claim that trial counsel's failure to offer intoevidence the complainant's alleged prior inconsistent statements, as contained in a certain policereport regarding the subject incident, deprived him of the effective assistance of counsel. "Adefendant is not denied effective assistance of trial counsel merely because counsel does notmake a[n] argument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004]). In that regard, here, asthis Court implicitly concluded on the direct appeal from the defendant's judgment of conviction(see People v Bernardez, 63 AD3d1174, 1175 [2009]), absent proof that the complainant signed, prepared, or verified theaccuracy of the police report or any portion of the police report, the statements in the policereport attributed to the complainant were not admissible as prior inconsistent statements made byher regarding the subject incident (see People v White, 272 AD2d 239, 240 [2000];People v Gooding, 202 AD2d 375, 376 [1994]; see also People v Rodriguez, 36 AD3d 438, 438 [2007]). Also,under the circumstances, the police report was not admissible to demonstrate that thecomplainant failed to tell the police certain information about the subject incident (see People v Keys, 18 AD3d 780,781 [2005]).
Further, under the circumstances, there is no merit to the defendant's claim that trial counselwas ineffective for failing to properly cross-examine the People's witnesses who testifiedregarding the complainant's "prompt outcry" as to why the witness failed to correct thecomplainant's statement to the police to the extent that the statement differed from her initialcomplaint, or to make an offer of proof regarding the need for such cross-examination. Trialcounsel was effective in placing the credibility of both the witness and the complainant at issuewhen he cross-examined them concerning their respective statements (see generally People vGrant, 297 AD2d 350, 350 [2002]). There is also no merit to the defendant's claim that hewas deprived of the effective assistance of counsel by trial counsel's failure to object, on theground of impermissible bolstering, to the complainant's testimony that she told a certaindetective the details of the subject incident since, under the circumstances, the subject testimonyconstituted proper background information as to the events leading up to the defendant's arrest(see People v Arredondo, 226 AD2d 322, 323 [1996]; People v Vidal, 214 AD2d347, 348 [1995]; see also People vColeman, 37 AD3d 846, 847 [2007]; see generally People v Stultz, 2 NY3d at287). The defendant claims that trial counsel was ineffective for failing to object to theprosecutor's remarks during her summation suggesting that the complainant was telling the truthabout the subject incident because she had repeated the same story to numerous persons,including a certain detective. Under the circumstances, the failure to object appears to have beena defense strategy to support the defendant's attempt to cast doubt on the complainant's credibility(see People v Clark, 222 AD2d 446, 447 [1995]; People v Vaughn, 209 AD2d459, 460 [1994]).
Finally, there is no merit to the defendant's claim that he was deprived of the effectiveassistance of counsel by trial counsel's failure to request a limiting instruction that the "promptoutcry" evidence was admitted only to show that a complaint was made, not for its truth.Although trial counsel failed to ask for such a limiting instruction when the People introducedthe "prompt outcry" evidence, ultimately, during the final jury charge, the trial court instructedthe jury regarding the proper use of "prompt outcry" evidence, tracking the language of NewYork's Criminal Jury Instructions (CJI2d[NY] Prompt Outcry; see People v Spicola, 16 NY3d441 [2011]; see also People vBrooks, 71 AD3d 1043 [2010]; see generally People v Grant, 297 AD2d at 350).Trial counsel's failure to object to the People's suggesting during their summation that the"prompt outcry" evidence was direct proof of the defendant's guilt did not constitute ineffectiveassistance of counsel, since it must be presumed that the jury followed the trial court's subsequentinstruction to the contrary, alleviating any alleged prejudice to the defendant (see People vFerrer, 245 AD2d 569, 570 [1997]; People v Lugo, 218 AD2d 711, 711 [1995]).Mastro, J.P., Angiolillo, Chambers and Cohen, JJ., concur.