| People v Oathout |
| 2011 NY Slip Op 09552 [90 AD3d 1418] |
| December 29, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherOathout, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered April 25, 2008, upon a verdict convicting defendant of the crime of murder in thesecond degree.
Defendant was arrested and charged with the intentional murder of a victim who, in October2006, was found beaten, strangled and stabbed to death inside his City of Albany apartment.During a canvas of the building where the murder had taken place, detectives from the City ofAlbany Police Department found defendant asleep on a couch in an apartment belonging toErnest Nelson. After being awakened, defendant gave police a false name and fled the buildingafter they left the apartment. Later, when the police determined defendant's true identity andlearned that warrants were outstanding for his arrest, he was taken into custody in New York Cityand returned to Albany County where he was incarcerated. Three weeks later, after he wasreleased from jail, defendant agreed to talk with police about the murder. Initially, he claimedthat he did not know the victim, but later stated that while his fingerprints might be found in thevictim's apartment, he was not there on the night of the attack and was not involved in themurder. Defendant told police that he gave them a false name when they first questioned himbecause warrants had been issued for his arrest and, if they knew his true identity, he would havebeen arrested and incarcerated. Upon completion of the interview, defendant was not chargedwith any crime and was released by the police.[*2]
As part of their investigation, the police made contactwith Oswaida Lugo, a confidential informant with a lengthy criminal record whose nameappeared in the visitor's log book of the victim's apartment building, indicating that she had beenon the premises on the night of the murder. Lugo initially told police that she knew nothing aboutthe murder, but later admitted that she had gone to the victim's apartment that evening withdefendant to participate in an act of prostitution. She stated that while she was in the apartment,defendant went into the bathroom with the victim and, when they emerged, defendant told herthat she did not "have to do nothing," defendant gave her some money, and then he argued withthe victim about the amount of money the victim was going to pay defendant. According toLugo, defendant attacked the victim when he refused to give him more money and, during theassault, strangled the victim and then stabbed him numerous times with a knife. She testified thatafter the attack, defendant gave her $20, which she used to purchase a "20 piece" of crackcocaine. Based on Lugo's statement, defendant was arrested and charged with the victim'smurder. After a jury trial, defendant was found guilty of murder in the second degree, andsubsequently sentenced to a prison term of 25 years to life. He now appeals, arguing, amongother things, that the verdict was against the weight of the credible evidence, that he was deniedthe effective assistance of counsel and that the People improperly presented evidence at trialregarding his criminal background.
Initially, defendant claims that Lugo was an accomplice and, given her criminal record andbackground as a confidential informant, her testimony is inherently suspect and, if rejected asincredible, the jury's verdict cannot be support by the weight of the credible evidence introducedat trial. He argues that Lugo is the only witness called by the People who directly connects him tothe commission of this murder, and her testimony alone cannot support this conviction becausethere is no independent evidence connecting him to the commission of the murder (seeCPL 60.22 [1]; People v Caban, 5NY3d 143, 154 [2005]; People vLumnah, 81 AD3d 1175, 1176 [2011], lv denied 16 NY3d 897 [2011]; People v Lee, 80 AD3d 877, 878[2011], lv denied 16 NY3d 832 [2011]). We disagree. While Lugo admitted being in theapartment when the murder took place, no evidence was presented that she participated in theattack of the victim or had any involvement in the acts that resulted in his murder. As such,simply because she was at the apartment to participate in an act of prostitution did not make heran accomplice to this murder or any other "offense based upon the same or some of the samefacts or conduct which constitute the offense charged" (CPL 60.22 [2] [b]; see People vCaban, 5 NY3d at 152).
Moreover, even if Lugo was an accomplice, ample evidence was presented at trial fromindependent sources that corroborated her testimony and connected defendant with thecommission of the charged crime (see CPL 60.22 [1]; People v Pagan, 87 AD3d 1181, 1182 [2011]; People vLee, 80 AD3d at 877). Defendant's presence in the apartment building on the night of themurder, his use of a false name when questioned by the police, his flight from the scene afterspeaking with police, a statement attributed to him by a third party that he left the area "becausepossibly he was involved in a murder" and testimony from a fellow inmate claiming thatdefendant admitted committing the murder all served to corroborate Lugo's testimony andconstituted competent proof connecting defendant to the commission of this crime. Moreover,the medical examiner's testimony confirming that the victim's death was caused by manualstrangulation and multiple stab wounds, when viewed with the other evidence introduced at trial,leads us to conclude that defendant's conviction was not against the weight of the credibleevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]; People v Pagan, 87 AD3d at 1182).[*3]
Defendant also alleges that he was denied a fair trialwhen the People elicited testimony that he was "a gay prostitute for old men" and a habitualcrack user. While no objection was raised to the admission of this evidence, given his claim ofineffective assistance of counsel, our review of this issue is required (see People v Echavarria, 53 AD3d859, 863 [2008], lv denied 11 NY3d 832 [2008]). County Court did rule, prior toLugo testifying at trial, that she would be permitted to testify as to why she went with defendantto the victim's apartment and, while there, defendant had sex with the victim to earn money tobuy cocaine. Given the integral role the particulars of this testimony played in Lugo's narrativeregarding the events that led up to the victim's murder and defendant's explanation to the policethat he left the area because of the arrest warrants, it can hardly be argued that this evidence wasnot relevant, or that its relevance did not outweigh any prejudicial impact that might result if itwere admitted at trial (see People v Echavarria, 53 AD3d at 863; People vJohnson, 233 AD2d 761, 763 [1996], lv denied 89 NY2d 1012 [1997]). We agreewith defendant that the court's ruling did not address the admissibility of other evidence that thePeople offered at trial regarding defendant's activities as a prostitute or his illegal use of drugs,and this evidence should have been considered at the hearing prior to it being received at trial (see generally People v Moore, 59AD3d 809, 811-812 [2009]). However, as previously noted, the criminal activity disclosedby such evidence was properly before the jury based upon the court's earlier ruling, and any errorthat may have been committed by the admission of this additional proof regarding defendant'scriminal background did not deprive him of a fair trial (see People v Johnson, 233 AD2dat 763).
Defendant also claims that he was denied the effective assistance of counsel. He raises amyriad of complaints regarding counsel's efforts on his behalf and argues that counsel'sinexperience and general unfamiliarity with applicable criminal law deprived him of meaningfulrepresentation. While we agree that counsel's representation of defendant may, at times, havebeen unorthodox, it was not, when the record is viewed as a whole, ineffective.
Initially, we note that when making a claim regarding ineffective assistance of counsel, a"defendant must demonstrate that his [or her] attorney failed to provide meaningfulrepresentation" and that there are no "strategic or other legitimate explanations for counsel'sallegedly deficient conduct" (People v Caban, 5 NY3d at 152 [internal quotation marksand citation omitted]; see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]). As for the specifics of defendant's claim, he initiallymakes reference to an application by an Assistant District Attorney (hereinafter ADA) prior totrial requesting that another attorney be assigned by County Court to assist defendant's counsel inthe conduct of this defense. Defendant's counsel did not oppose this application, but took issuewith any assertion that he was inexperienced or uninformed about the nuances of criminal lawand criminal procedure. While County Court did not specifically rule on the ADA's request, it didnot appoint another lawyer to assist counsel, and defendant—after initially expressingreservations about defense counsel—reaffirmed his wish that counsel continue to representhim during this prosecution. Also, the ADA's application focused on preliminary matters that hadno effect on the subsequent proceedings or resulted in any perceptible prejudice that can be saidto have deprived defendant of a fair trial. As for the ADA's claim that at the preliminary hearingdefense counsel demonstrated that he was not familiar with how to use a prior inconsistentstatement to impeach a witness or how to properly lay the foundation for the admission of certainevidence, the record at trial—and, in particular, defense counsel's cross-examination ofLugo—established that these concerns were groundless.
Defendant also argues that counsel's failure to object to repeated references made by the[*4]ADA to his criminal background prejudiced him and servedto deprive him of a fair trial. However, as we have previously noted, such an objection, if made,would not have kept from the jury the details of defendant's criminal background or that he wasat the victim's apartment at the time of the murder for an illicit purpose. As for defendant's othercomplaints regarding counsel's performance at trial, the record reveals that counsel challengedLugo's credibility by vigorously cross-examining her regarding numerous inconsistencies instatements she made to the police, including her failure to accurately identify, when firstquestioned by the police, where in the apartment the murder actually took place. Counsel usedthis inconsistency to argue that Lugo could not have made such a mistake if she actuallywitnessed the murder, and claimed that she only corrected this error upon being prompted by thepolice. Counsel also exposed in detail Lugo's extensive criminal record and raised relevantquestions as to her credibility and how it was compromised by promises she had received fromthe police in return for her testimony as a witness against defendant.
As for defendant's use of a false name and his flight to New York City on the night of themurder, counsel argued and introduced evidence to support his contention that defendant left thearea, not because he was guilty of murder, but because he knew warrants had been issued for hisarrest that could result in his incarceration. Also, counsel established that when defendanttraveled by bus to New York City, he did so on a ticket that had been purchased on a date prior tothe murder. Moreover, counsel introduced evidence that, despite the brutal nature of the murder,no blood was seen on defendant by witnesses or police officers who were with him shortly afterthe crime had been committed, nor was defendant's DNA found on the victim's body despite thephysical contact that Lugo claimed the two had when the strangulation and assault with the knifetook place. In his summation, counsel made cogent arguments that served to expose significantgaps in the People's case against defendant and sought to minimize the import of defendant'scriminal record by arguing that "defendant is an unfortunate young man . . . whowas in the wrong place at the wrong time . . . was smoking crack, doing drugs,hanging out with the bad people," but that nothing in his background indicated that he wasviolent or capable of committing a murder. On balance, defendant's claim that counsel failed toprovide him with meaningful representation, in our view, is not born out by a fair reading of therecord (see People v Abare, 86AD3d 803, 805-806 [2011]; compare People v Arnold, 85 AD3d 1330, 1332-1334 [2011]).
Finally, we reject defendant's claim that County Court erred by denying his CPL 330.30motion without a hearing. The factual allegations made by defendant in support of this motionand his claim that counsel would not allow him to testify at trial are not reflected in the recordand, therefore, a hearing was not required prior to County Court denying this motion (see People v Hampton, 64 AD3d872, 875-876 [2009], lv denied 13 NY3d 796 [2009]; see also People v Hardy, 49 AD3d1232, 1233 [2008], affd 13 NY3d 805 [2009]).
Rose, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.