| People v Miller |
| 2011 NY Slip Op 06573 [87 AD3d 1075] |
| September 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JelanMiller, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (T. Dolan,J.), rendered September 4, 2009, convicting him of rape in the first degree, rape in the thirddegree, attempted criminal sexual act in the first degree, and attempted criminal sexual act in thethird degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
"A defendant in a criminal case has a constitutional right to the effective assistance ofcounsel" (People v Larkins, 10AD3d 694, 694 [2004]; see US Const 6th Amend; NY Const, art I, § 6)."However, what constitutes effective assistance is not and cannot be fixed with precision, butvaries according to the particular circumstances of each case" (People v Rivera, 71 NY2d705, 708 [1988]). Under the New York State Constitution, "[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 Benevento, 91 NY2d 708, 712 [1998]). The focus of the New York standard is on"the fairness of the process as a whole" (People v Benevento, 91 NY2d at 714). Toprevail on a claim of ineffective assistance of counsel, it is incumbent on the defendant todemonstrate "the absence of strategic or other legitimate explanations" for counsel's allegedlydeficient conduct (People v Rivera, 71 NY2d at 709).[*2]
In this case, the defendant was charged with the rape ofthe then-16-year-old complainant. The evidence at trial showed that the complainant spent timein the home of the defendant and his then-girlfriend (hereinafter the girlfriend), taking care oftheir children. The complainant testified that the defendant raped her when she spent the night atthe home of the defendant and the girlfriend (hereinafter the defendant's home).
At trial, defense counsel failed to prevent unduly prejudicial testimony from being admittedinto evidence. The complainant's mother testified that two of the girlfriend's nieces wereregularly present in the defendant's home. The complainant's mother stated that she heard fromthe girlfriend that the two nieces "all of a sudden" became "monsters." She added that one of thenieces became "mean and angry" while the other became "very promiscuous." This testimonyimplied that the defendant committed sex crimes against the girlfriend's two nieces and, thus,improperly suggested to the jury that the defendant had a propensity for committing sex crimesagainst young children. Defense counsel unsuccessfully objected to this testimony on hearsaygrounds, but never raised the objection that the testimony was unduly prejudicial (see People v Alford, 33 AD3d1014, 1015 [2006]). Furthermore, defense counsel never requested a limiting instructionregarding the jury's consideration of that testimony (see People v Fleegle, 295 AD2d 760,762-763 [2002]).
Furthermore, on the defendant's case, the girlfriend stated on cross-examination that herdaughter, who lived with the defendant and the girlfriend, had a dream that the defendant wassexually abusing her. The prosecutor then asked the girlfriend if she was telling the jury that itwas just a "horrible coincidence" that her daughter had a dream that the defendant raped her andthat the complainant was also alleging that she was raped by the defendant. Defense counselobjected on the ground that he would love to "go into details and conversations," but neverobjected based on the unfairly prejudicial nature of the testimony. The objection was overruledand the testimony was admitted into evidence. This testimony implied that the defendant rapedthe girlfriend's daughter and impermissibly suggested that the defendant had a propensity forcommitting crimes of sexual abuse against young children. To compound the error, defensecounsel did not request a limiting instruction with respect to the testimony (id.). Inaddition, defense counsel failed to object to inflammatory comments made by the prosecutor insummation with regard to the testimony (see People v Lindo, 167 AD2d 558, 559[1990]).
There is no legitimate trial strategy for defense counsel's failure to object to the prejudicialnature of the above-described testimony. Moreover, the inclusion of this testimony into the jury'scalculus deprived the defendant of a fair trial by suggesting that he had a criminal propensity forcommitting crimes of sexual abuse against young children and distracting the jury fromevaluating the evidence relating to the crimes charged. Thus, the effect of defense counsel'serrors deprived the defendant of meaningful representation. Accordingly, the judgment must bereversed and a new trial ordered.
In light of our determination, we need not reach the defendant's remaining contentions.Mastro, J.P., Hall, Lott and Cohen, JJ., concur.