| People v Muniz |
| 2012 NY Slip Op 01518 [93 AD3d 871] |
| March 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Albiso C.Muniz, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Peters, J. Appeals (1) from a judgment of the County Court of Chemung County (Hayden,J.), rendered April 2, 2009, upon a verdict convicting defendant of the crimes of rape in thesecond degree, petit larceny and criminal mischief in the fourth degree, and (2) by permission,from an order of said court, entered November 9, 2009, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
On the morning of June 14, 2007, Virginia Candelaria called 911 reporting that she hadarrived at her apartment in the City of Elmira, Chemung County to find the victim, herroommate's 13-year-old daughter, engaged in sexual intercourse with a man later identified asdefendant, who was 37 years old at the time. Following a jury trial, defendant was convicted ofrape in the second degree, petit larceny and criminal mischief in the fourth degree. County Courtdenied defendant's pro se motion to set aside the verdict and sentenced him, as a second felonyoffender, to 3½ to 7 years in prison. After it was discovered that the sentence imposed onthe rape count was illegal, defendant was resentenced to an aggregate term of seven years inprison followed by five years of postrelease supervision. Defendant's subsequent CPL 440.10motion was denied without a hearing. He now appeals from the judgment of conviction and, bypermission, from the order denying his CPL 440.10 motion.[*2]
We reject defendant's contention that the indictment mustbe dismissed because he appeared before the grand jury in shackles and prison garb. Althoughthe requisite reasonable basis for the restraint was not articulated on the record, reversal is notrequired since the prosecutor's cautionary instructions to the grand jury were sufficient to dispelany potential prejudice (see People vCrumpler, 70 AD3d 1396, 1397 [2010], lv denied 14 NY3d 839 [2010]; People v Pennick, 2 AD3d 1427,1428 [2003], lv denied 1 NY3d 632 [2004]; People v Fells, 279 AD2d 706,708-709 [2001], lv denied 96 NY2d 758 [2001]; People v Felder, 201 AD2d 884,885 [1994], lv denied 83 NY2d 871 [1994]). In addition, defendant's claim that the publicservant who transported him from the jail to the grand jury proceeding was not administered anoath of secrecy (see CPL 190.25 [3] [e]) is belied by the record. Accordingly, CountyCourt properly denied defendant's motion to dismiss the indictment on these grounds.
We are similarly unpersuaded by defendant's argument that the pretrial identificationprocedure used by the police was unduly suggestive. " 'A photo array is unduly suggestive ifsome characteristic of one picture draws the viewer's attention in such a way as to indicate thatthe police have made a particular selection' " (People v Davis, 18 AD3d 1016, 1018 [2005], lv denied 5NY3d 805 [2005], quoting People vYousef, 8 AD3d 820, 821 [2004], lv denied 3 NY3d 743 [2004]). Here, the arraydepicts individuals of similar age, appearance and physical characteristics. The officer whoprepared the array testified at the Wade hearing that Candelaria and the victim wereshowed the array at separate times and places, that each identified defendant as the perpetrator,and that no suggestions were made regarding which photo they should choose. Defendant'scontention that his photo was taken at a slightly closer range than the others does not render thearray unduly suggestive (see People vMeans, 35 AD3d 975, 976 [2006], lv denied 8 NY3d 948 [2007]; People vBrown, 169 AD2d 934, 935 [1991], lv denied 77 NY2d 958 [1991]; see also People v Lawal, 73 AD3d1287, 1288 [2010]). Nor do the discrepancies between the description provided byCandelaria and defendant's appearance require suppression (see People v Hunter, 32 AD3d 611, 613 [2006]). Thus, CountyCourt properly denied defendant's motion to suppress the identifications.
Defendant's claim that the verdict was against the weight of the evidence is also withoutmerit. The victim testified that she met defendant, who she identified in open court, when heoffered her a ride as she was walking home. At his request, she gave him her home telephonenumber before he dropped her off at her apartment. Two days later, he called early in themorning and asked her if anyone was home; when she said no, he asked if he could come over,and the victim told him that he could. The victim explained that after defendant arrived theybegan kissing and eventually moved to the bedroom where defendant "put his penis in [her]vagina." While defendant highlights certain inconsistencies between the victim's in-courttestimony and her out-of-court statements or other evidence in the record, and stresses the factthat she had been diagnosed with bipolar disorder and was hospitalized at the time of trial, theseissues were fully explored at trial and do not render her testimony incredible as a matter of law(see People v Shepherd, 83 AD3d1298, 1299 [2011], lv denied 17 NY3d 809 [2011]; People v Stearns, 72 AD3d 1214,1216 [2010], lv denied 15 NY3d 778 [2010]; People v Conklin, 63 AD3d 1276, 1277 [2009], lv denied13 NY3d 859 [2009]). Moreover, despite defendant's assertion to the contrary, corroboration ofthe victim's testimony was not required because her incapacity to consent was a product of herage (see People v Carroll, 95 NY2d 375, 383 [2000]; People v Alford, 287 AD2d884, 886 [2001], lv denied 97 NY2d 750 [2002]; People v Kelly, 270 AD2d 511,512 [2000], lv denied 95 NY2d 854 [2000]).
Aside from the victim's testimony, Candelaria testified that, upon returning home at [*3]approximately 9:00 a.m. on the morning of the incident afterworking her overnight shift, she noticed that the downstairs front door was unlocked and theupstairs door to the apartment was ajar. Upon entering the inside of the apartment and hearingnoise from the victim's room, she pushed the victim's door open and saw a man, whom sheidentified in court as defendant, having sex with the victim. Candelaria testified that defendantthen frantically began getting dressed and, as she called 911 on her cordless telephone, defendanttook the telephone from her hand, removed its battery and then pushed her away as he tried toleave. After he went down the stairs, Candelaria locked the apartment door but, unable to exitbecause the front door was locked, defendant came back up the stairs, pushed on the door untilthe lock and part of the door broke and came back into the apartment demanding that Candelariaunlock the door. Candelaria testified that she ultimately did so out of fear and that, as he wasleaving, defendant took her cordless telephone with him. After defendant fled, Candelaria noticedwhite underwear, which she had seen defendant holding while he was attempting to exit theapartment, in a chair next to the victim's door. One of the responding officers identified theunderwear as that which he recovered from the apartment on the morning of the incident, andDNA evidence established that seminal fluid on the underwear matched the DNA of defendant.
The People also presented telephone records indicating that three calls were placed from atelephone number associated with defendant's girlfriend to the victim's home before 9:00 a.m. onthe morning of the incident. The evidence further established that defendant would have hadenough time to commit the crime and travel to the supermarket—located just over a milefrom the victim's apartment—where he was captured on video surveillance at 9:22 a.m.Telephone records, surveillance video and testimony also indicated that a call was placed to thevictim's apartment from a pay telephone located outside the supermarket on June 14, 2007 at11:24 a.m., which was consistent with Candelaria's testimony that, about an hour and a half afterthe incident, defendant called the apartment and, believing that she was the victim, asked inSpanish "how was everything."
Although defendant denied ever having sexual contact with the victim and presented adetailed alibi defense, this created credibility issues that the jury was entitled to, and obviouslydid, resolve against him (see People vStephens, 2 AD3d 888, 889 [2003], lv denied 2 NY3d 746 [2004]; People vJones, 283 AD2d 665, 668 [2001], lv denied 96 NY2d 903 [2001]; People vJohnson, 268 AD2d 891, 894 [2000], lv denied 94 NY2d 921 [2000]). Thediscrepancies between the witnesses' physical description of the perpetrator and the underwearfound in the victim's apartment similarly raised issues of credibility for the jury and did notcompel crediting defendant's misidentification or alibi defenses given the other strong evidenceestablishing his identity (see People vJohnson, 91 AD3d 1194, 1196 [2012]; People v Colon, 24 AD3d 1114, 1115 [2005], lv denied 6NY3d 811 [2006]; People v Mills,20 AD3d 779, 781 [2005]). According due deference to the jury's credibility determinationsand viewing the evidence in a neutral light (see People v Bleakley, 69 NY2d 490, 495[1987]; People v Hull, 71 AD3d1336, 1338 [2010]), we find the verdict to be amply supported by the weight of the evidence.
We discern no abuse of discretion in County Court's Sandoval ruling, which took intoaccount all relevant factors and struck an appropriate balance between the probative value ofdefendant's prior convictions and the risk of unfair prejudice to him (see People v Peele, 73 AD3d1219, 1220 [2010], lv denied 15 NY3d 894 [2010]; People v Mitchell, 57 AD3d 1308,1311 [2008]; People v Brown, 52AD3d 943, 947 [2008], lv denied 11 NY3d 735 [2008]). The court precluded anyinquiry into defendant's 1993 conviction for attempted criminal possession [*4]of a controlled substance in the third degree, his 1994 convictionfor assault in the second degree and his 1995 conviction for criminal mischief, but permitted thePeople to cross-examine defendant regarding his 1996 and 2000 felony convictions for criminalsale of a controlled substance in the fifth degree. As County Court correctly concluded, each ofthese convictions was indicative of defendant's willingness to place his own interests above theinterests of society and, thus, relevant to his credibility (see People v Grady, 40 AD3d 1368, 1370 [2007], lv denied9 NY3d 923 [2007]; People vRichins, 29 AD3d 1170, 1172 [2006], lv denied 7 NY3d 817 [2006]; Peoplev Porter, 304 AD2d 845, 847 [2003], lv denied 100 NY2d 565 [2003]).
Despite the litany of errors asserted by defendant, we find that he received meaningfulrepresentation. Some of defendant's arguments pertain to matters outside the present record,which cannot be raised on direct appeal and were not raised in his CPL article 440 motion (see People v Shaver, 86 AD3d800, 802 [2011]; People vClinkscales, 83 AD3d 1109, 1110 [2011], lv denied 17 NY3d 815 [2011]).While counsel failed to timely register an objection to defendant's appearance before the grandjury, we perceive no prejudicial error under the circumstances (see People v Porter, 82 AD3d1412, 1416 [2011], lv denied 16 NY3d 898 [2011]). The remaining claimed errors orshortcomings on the part of counsel are either belied by the record, constitute meredisagreements with the defense or trial strategy, or have not been shown to be without anystrategic or other legitimate explanation (see People v Shaver, 86 AD3d at 802;People v Porter, 82 AD3d at 1415-1416; People v Richards, 78 AD3d 1221, 1225-1226 [2010], lvdenied 15 NY3d 955 [2010]). Faced with substantial testimonial and physical evidenceimplicating defendant, the various counsel who represented him effectively advocated for himand mounted a strong defense to the charges by filing numerous pretrial motions, raising relevantobjections, aggressively seeking to exclude evidence that counsel viewed as prejudicial,competently cross-examining the People's witnesses, presenting a cogent alibi defense andmaking relevant arguments before the jury. Viewing the evidence, the law and the circumstancesof the case in totality, we find that defendant was not deprived of effective assistance (seePeople v Baldi, 54 NY2d 137, 147 [1981]; People v Young, 86 AD3d 796, 799 [2011], lv denied 17NY3d 905 [2011]).
Defendant's remaining contentions do not require extended discussion. The majority of thealleged instances that defendant asserts constituted prosecutorial misconduct were not preservedfor our review (see People vWilliams, 8 NY3d 854, 855 [2007]) and, in any event, any such conduct was not soegregious or pervasive as to deprive defendant of a fair trial (see People v Dickson, 58AD3d 1016, 1018 [2009], lv denied 12 NY3d 852 [2009]; People v Adams, 39 AD3d 1081,1083 [2007], lv denied 9 NY3d 872 [2007]). Next, defendant was afforded a meaningfulopportunity to use the material provided by the People on the eve of trial and, thus, his claim thathe was denied a fair trial due to the People's untimely disclosure of this alleged Bradyand/or Rosario evidence is unpersuasive (see People v Cortijo, 70 NY2d 868,869-870 [1987]; People v Newland,83 AD3d 1202, 1204 [2011], lv denied 17 NY3d 798 [2011]; People v Burroughs, 64 AD3d894, 898 [2009], lv denied 13 NY3d 794 [2009]). As for his claim that the sentencewas harsh and excessive, given the nature of the crimes committed and defendant's extensivecriminal history, which includes several felony convictions, and considering the measure ofleniency he received by County Court's discretionary decision to treat him as a second felonyoffender, rather than a persistent felony offender, we find no clear abuse of discretion norextraordinary circumstances warranting modification of the sentence (see People v Lockhart, 12 AD3d842, 845 [2004], lv denied 4 NY3d 800 [2005]; People v Rivera, 268 AD2d674, 674 [2000], lv denied 94 NY2d 952 [2000]; People v Johnson, 235 AD2d574, 574 [1997], lv denied 89 NY2d 1036 [1997]). Finally, we have reviewed thearguments raised in defendant's pro se [*5]submission and, to theextent not specifically addressed herein, we find them to be lacking in merit.
Mercure, A.P.J., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment and orderare affirmed.