| People v Madison |
| 2013 NY Slip Op 03222 [106 AD3d 1490] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vAlonzo Madison, Appellant. (Appeal No. 1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges,J.), rendered February 10, 2011. The judgment convicted defendant, upon a nonjuryverdict, of criminal contempt in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: In appeal Nos. 1 and 2, defendant appeals from separate judgmentseach convicting him upon a nonjury verdict of criminal contempt in the second degree(Penal Law § 215.50 [3]). In appeal No. 3, defendant appeals from a judgmentconvicting him upon a nonjury verdict of assault in the third degree (§ 120.00 [1])and harassment in the second degree (§ 240.26 [1]). With respect to all threeappeals, defendant failed to preserve for our review his contention that the evidence islegally insufficient to support his conviction. At the close of the People's case, defendantmoved to dismiss the assault count, but did not raise the specific grounds advanced onappeal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Beard, 100 AD3d1508, 1509 [2012]), and he failed to make any motion regarding the criminalcontempt or harassment counts (see People v Prescott, 286 AD2d 898, 898[2001], lv denied 97 NY2d 686 [2001]). Further, defendant did not renew hismotion for a trial order of dismissal after presenting proof (see People v Hines,97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Youngs, 101 AD3d1589, 1590 [2012]). In any event, we conclude that "viewing the facts in a light mostfavorable to the People, there is a valid line of reasoning and permissible inferences fromwhich [Supreme Court] could have found the elements of the crime[s] proved beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 349 [2007] [internal quotation marks omitted]).
We reject defendant's contention in all three appeals that counsel was ineffectivebecause he failed to object to leading questions, to the introduction of prejudicialphotographs, or to hearsay testimony, and because he permitted the introduction ofuncertified medical records. Contrary to defendant's contention, the medical records werein fact certified and the photographs of the victim's injuries were properly admitted inevidence because they were relevant to the physical injury element of the assault count,corroborated the victim's testimony, and illustrated the medical records (see People vDogan, 170 AD2d 955, 955 [1991], lv denied 78 NY2d [*2]965 [1991]; see also People v Pobliner, 32 NY2d356, 369 [1973], rearg denied 33 NY2d 657 [1973], cert denied 416 US905 [1974]; People v Brakefield, 156 AD2d 1004 [1989], lv denied 75NY2d 917 [1990]). With respect to defense counsel's failure to object to leadingquestions or to hearsay testimony, defendant did not "meet his burden of establishing theabsence of any legitimate explanations for" that failure (People v Morrison, 48 AD3d1044, 1045 [2008], lv denied 10 NY3d 867 [2008]; see People vBenevento, 91 NY2d 708, 712-713 [1998]), particularly in the context of thisnonjury trial (see generallyPeople v Howard, 101 AD3d 1749, 1750-1751 [2012]; People v Kolon, 37 AD3d340, 342 [2007], lv denied 8 NY3d 947 [2007]; People v Stephens,254 AD2d 105, 105 [1998], lv denied 93 NY2d 879 [1999]).
Contrary to the further contention of defendant in all three appeals, the People didnot violate Brady or CPL article 240 with respect to the disclosure of certaintelephone records. The telephone records do not fall within any of the enumeratedcategories of property to which a defendant is entitled pursuant to CPL 240.20 (1) and, inany event, the People provided those records to defendant prior to trial, and defensecounsel utilized them in cross-examining the victim. Thus, defendant "failed to establishthat he suffered any actual prejudice from the late disclosure" (People v Jacobson, 60 AD3d1326, 1328 [2009], lv denied 12 NY3d 916 [2009]). Further, contrary todefendant's apparent contention, the People had no duty to obtain the subscriberinformation on defendant's behalf (see People v Hayes, 17 NY3d 46, 51-52 [2011], certdenied 565 US—, 132 S Ct 844 [2011]).
We agree with defendant's contention in appeal Nos. 1 and 2, however, that the courtshould have granted that part of his CPL 330.30 motion seeking to set aside the verdictwith respect to the criminal contempt convictions, and that he is entitled to a new trial onthose counts. To set aside a verdict pursuant to CPL 330.30 (3), a defendant must provethat "there is newly discovered evidence: (1) which will probably change the result if anew trial is granted; (2) which was discovered since the trial; (3) which could not havebeen discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6)which does not merely impeach or contradict the record evidence" (People vWainwright, 285 AD2d 358, 360 [2001]; see People v Salemi, 309 NY 208,215-216 [1955], cert denied 350 US 950 [1956]; People v McCullough,275 AD2d 1018, 1019 [2000], lv denied 95 NY2d 936 [2000]).
Here, the newly discovered evidence consists of subscriber information for twoprepaid cell phone numbers, and call records from another telephone number. Thosetelephone numbers are material because they appear in the victim's telephone records atthe times that defendant allegedly called her in violation of the orders of protection. Thevictim testified at trial that she did not recognize two of the telephone numbers in hertelephone records during the relevant times. After the trial, defendant determined that thenumbers both belonged to the victim's close friend, who had also accused defendant ofharassment. Other incoming telephone numbers that appeared in the victim's telephonerecords during the times that defendant allegedly called her belonged to the victim's sonand another alleged friend of the victim. We conclude that the evidence that thepurported telephone calls from defendant were actually made from numbers registered toindividuals associated with the victim "create[d] a probability that had such evidencebeen received at the trial the verdict would have been more favorable to the defendant"(CPL 330.30 [3]; see People v Barreras, 92 AD2d 871, 871 [1983]; People vRamos, 166 Misc 2d 515, 522-523 [1995], affd 232 AD2d 583 [1996]). Theevidence is not cumulative and, contrary to the contention of the People, does not"merely impeach or contradict the record evidence" (Wainwright, 285 AD2d at360; cf. People v White, 272 AD2d 872, 872-873 [2000], lv denied 95NY2d 859 [2000]). Rather, the evidence suggests that the victim's testimony, which isthe only evidence supporting the criminal contempt convictions, may have beenfabricated or, at the very least, mistaken.
The question thus becomes whether defendant could have discovered the materialearlier in the exercise of reasonable diligence (see CPL 330.30 [3]; seegenerally People v Robertson, [*3]302 AD2d 956,958 [2003], lv denied 100 NY2d 542 [2003]). Although defense counsel clearlycould have subpoenaed subscriber information or telephone records prior to trial, weconclude that his ability to do so was frustrated by the People's refusal to specify theprecise times of the alleged phone calls received by the victim and the numbers fromwhich or to which defendant allegedly called, and by their delay in turning over thevictim's telephone records from the dates in question. The victim's telephone recordsreflect a myriad of incoming and outgoing calls from various numbers on the dates atissue and, without any specificity as to the numbers alleged to have been used bydefendant or the times he allegedly called the victim, defendant would have had toengage in a "fishing expedition" by subpoenaing the subscriber information and callrecords for multiple numbers. It was only during the course of the trial that defendantlearned the times of the offending calls and the telephone numbers from which heallegedly called the victim, at which point it was too late to subpoena the relevantrecords. We thus agree with defendant that the newly discovered evidence was notavailable to him prior to trial (see Ramos, 166 Misc 2d at 519-523; cf. Peoplev Matthew, 274 AD2d 485, 485-486 [2000]). We therefore reverse the judgments inappeal Nos. 1 and 2, and order a new trial on those counts.
Contrary to the contention of defendant in appeal No. 3, however, we see no basis todisturb his conviction of assault in the third degree and harassment in the second degreeinasmuch as the newly discovered evidence does not relate to those counts. Although thenewly discovered evidence raises questions about the victim's veracity, her testimonyconcerning the assault incident was credited by the court, defendant admitted that he wasinvolved in a confrontation with the victim on that date, and the victim's version ofevents was corroborated by contemporaneous medical records and photographs of herinjuries.
Finally, there is no merit to defendant's contention that the court should haveconvicted him of harassment in the second degree instead of assault in the third degree. Itis well established that harassment in the second degree is not a lesser included offenseof assault in the third degree (see People v Moyer, 27 NY2d 252, 253-254[1970]; see generally People v Hayes, 43 AD2d 99, 102 [1973], affd 35NY2d 907 [1974], rearg denied 37 NY2d 937 [1975]; People v Sipley,209 AD2d 864, 865-866 [1994], lv denied 84 NY2d 1038 [1995]).Present—Smith, J.P., Fahey, Peradotto, Lindley and Whalen, JJ.