| People v Clarke |
| 2013 NY Slip Op 07073 [110 AD3d 1341] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CoryJ. Clarke, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered June 25, 2010, upon a verdict convicting defendant of the crimes ofattempted murder in the second degree, predatory sexual assault against a child, incest inthe first degree, sexual abuse in the first degree, assault in the second degree,abandonment of a child and endangering the welfare of a child.
Shortly after noon on July 4, 2009, defendant reported that the victim, then just underseven months old, was missing from a Wal-Mart store in the Town of Thompson,Sullivan County. That evening, the victim was found in a nearby wooded area.Defendant was indicted for various crimes and, following a jury trial, convicted ofattempted murder in the second degree, criminal sexual act in the first degree, sexualabuse in the first degree, incest in the first degree, assault in the second degree,abandonment of a child, endangering the welfare of a child, and predatory sexual assaultagainst a child. He was sentenced to an aggregate prison term of 50 years to life, and nowappeals.[FN1][*2]
Defendant first contends that his convictions forattempted murder in the second degree, sexual abuse in the first degree and assault in thesecond degree are not supported by legally sufficient evidence. As he concedes, thisclaim was not preserved for appellate review (see People v Gray, 86 NY2d 10,19-20 [1995]). In view of defendant's inconsistent descriptions of his actions on the dayin question, the contrast between his accounts and the actual events revealed bysurveillance video and witness testimony, his apparent efforts to prevent police fromlocating the victim, the circumstances of her eventual discovery, her extreme youth, thenature of her injuries and the other evidence, we find no reason to exercise our interest ofjustice jurisdiction to modify any of these convictions (see CPL 470.15 [3];see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant next contends that County Court erred in denying his pretrial motionpursuant to County Law § 722-c for funds to hire a DNA expert. To prevail, hewas required to show that he was indigent, that the service was necessary to his defenseand, if the compensation he sought exceeded the statutory limit of $1,000, thatextraordinary circumstances justified the expenditure (see People v Brand, 13 AD3d820, 821 [2004], lv denied 4 NY3d 851 [2005]; People v Dearstyne,305 AD2d 850, 852 [2003], lv denied 100 NY2d 593 [2003]). As defendantcontends, the fact that a relative was paying his counsel fees did not defeat his claim ofindigency (see People vUlloa, 1 AD3d 468, 469 [2003]). Nonetheless, the decision whether to grant anapplication under County Law § 722-c is discretionary (see People v Lane,195 AD2d 876, 878 [1993], lv denied 82 NY2d 850 [1993]). Defendant's broadapplication sought public funds to hire multiple investigators and experts, and failed tostate a "distinct necessity" for the assistance of a DNA expert other than the People's useof DNA evidence (People v Dove, 287 AD2d 806, 807 [2001]; see People vGallow, 171 AD2d 1061, 1062-1063 [1991], lv denied 77 NY2d 995[1991]). Moreover, the application made no claim or showing of extraordinarycircumstances, nor did it indicate whether the compensation sought would exceed $1,000or detail the time to be spent and particular services rendered by the DNA expert (seePeople v Dove, 287 AD2d at 807; People v Dearstyne, 305 AD2d at852-853).[FN2] Accordingly, we find that the denial was not an abuse of discretion.
Defendant further relies upon the denial of his pretrial request for a DNA expert asthe basis of his claim that his posttrial motion to vacate the jury verdict should have beengranted. In support of the posttrial motion, he submitted the report of a DNA expert whocriticized the People's DNA analysis. Assuming without deciding that defendantsufficiently established that this report could not have been submitted before trial withdue diligence (see CPL 330.30 [3]),[FN3] the report did not constitute newly discovered evidence, as it merely attempted toimpeach and contradict trial evidence and—in view of the overwhelming evidenceof defendant's guilt—did not create a probability that the verdict would have beenmore favorable if the report had been [*3]admitted at trial(see People v Salemi, 309 NY 208, 226 [1955], cert denied 350 US 950[1956]; People v Tucker, 40AD3d 1213, 1215 [2007], lv denied 9 NY3d 882 [2007]; People vHayes, 295 AD2d 751, 752 [2002], lv denied 98 NY2d 730 [2002]).
We reject defendant's contention that his counsel inadequately waived his right to bepresent during sidebar conferences (see generally People v Antommarchi, 80NY2d 247, 250 [1992]). Prior to jury selection, County Court inquired whetherdefendant would attend sidebar conferences, and defense counsel advised that he wouldnot. A moment later County Court noted defendant's presence in the courtroom. Shortlythereafter, the prosecutor sought to confirm that defendant intended to waive hisappearance at sidebar conferences, and defense counsel responded to the court's furtherinquiry that he would. Defendant now argues that he was not present when his counselwaived his appearance. However, this record does not demonstrate that he was absent,and we thus find that defendant has not met the burden of coming forward withsubstantial evidence to defeat the presumption of regularity that attaches to judicialproceedings (see People vVelasquez, 1 NY3d 44, 48 [2003]; People v Keen, 94 NY2d 533,538-539 [2000]; People v Robinson, 191 AD2d 523, 523 [1993], lvdenied 81 NY2d 1018 [1993]; see also People v Williams, 11 AD3d 810, 812 [2004],lv denied 4 NY3d 769 [2005]). We further note that, following the waiver bycounsel, defendant was present during two sidebar conferences exploring potential jurorbias and, on appeal, he has not identified any material stage of the proceedings fromwhich he was excluded and in which his presence could have had "a substantial effect on[his] ability to defend against the charges" (People v Sloan, 79 NY2d 386, 392[1992]). While the best practice is for the court to directly explain the right being waivedto a defendant and confirm the knowing and voluntary nature of his or her waiver, nosuch colloquy is required "on the off-chance that a defendant who is adequatelyrepresented by counsel may nevertheless not know what he [or she] is doing" (Peoplev Velasquez, 1 NY3d at 49 [internal quotation marks, ellipses and citation omitted];see People v Hoppe, 96AD3d 1157, 1157-1158 [2012], lv denied 19 NY3d 1026 [2012]).
Defendant next contends that he was denied his right to a fair trial by the admissionof three photographs depicting injuries to the infant victim's genital and rectal area,which he claims were highly prejudicial and not probative of any material issue, as thenature of the injuries was not in dispute. This claim is unpreserved (see People v Wright, 38 AD3d1004, 1006 [2007], lv denied 9 NY3d 853 [2007]; People v Sawyer, 23 AD3d845, 847 [2005], lv denied 6 NY3d 852 [2006]). However, as defendantrelies upon this failure as one of the grounds for his claim that he received ineffectiveassistance of counsel, we note that counsel may have deemed an objection to beunnecessary or futile (see e.g.People v Bonelli, 41 AD3d 972, 973 [2007], lv denied 9 NY3d 921[2007]). Before the photographs were displayed to the jury, County Court warned that"you are going to see some photographs that are quite a graphic depiction of a veryserious situation. It's extremely emotionally charged and I know that all of you will havea difficult time viewing this . . . but it is relative [sic] and probative of whathappened. Who happened to do it is another issue, but it is admissible for purposes ofwhat happened."[FN4] Counsel could reasonably have concluded that no objection was likely to succeed in theface of this warning, which indicated County Court's opinion that the photographs wererelevant, and instructed the jury as to the limited purpose for which they were admitted(see People v Francis, 83AD3d 1119, 1122[*4][2011], lv denied 17NY3d 806 [2011]). In our view, the pictures accurately depicted the victim's injuries,corroborated the observations of the nurse who treated her upon her arrival at thehospital, and were disturbing because of the victim's infancy and the nature of herinjuries rather than because they were presented in an unnecessarily inflammatorymanner. Thus, if the issue had been preserved, we would have disagreed with defendant'sclaim that the photographs were admitted for the sole purpose of arousing prejudiceagainst him (see People v Wood, 79 NY2d 958, 960 [1992]; People v Manos, 73 AD3d1333, 1339 [2010], lv denied 15 NY3d 807 [2010]; see also People vSkinner, 298 AD2d 625, 626 [2002]), and we find no reason to modify the judgmentin the interest of justice.
Even if defendant had preserved his next contention that the People were improperlypermitted to elicit testimony regarding his silence and demeanor while speaking withpolice (see CPL 470.05 [2]; People v Shepherd, 83 AD3d 1298, 1301 [2011], lvdenied 17 NY3d 809 [2011]), we would have found it to be without merit.Defendant never invoked his right to remain silent or refused to answer questions whilespeaking with investigators. Instead, the testimony in question addressed "tellingomissions" from defendant's statements, such as failing to claim that anyone approachedthe stroller before the victim disappeared or to ask what police were doing to find her(People v Savage, 50 NY2d 673, 678 [1980], cert denied 449 US 1016[1980]; see People v Bierenbaum, 301 AD2d 119, 138 [2002], lv denied99 NY2d 626 [2003], cert denied 540 US 821 [2003]). Likewise, witnesstestimony describing defendant's demeanor during the search for the victim was relevantto demonstrate that his calmness was inconsistent with his account of her disappearanceand did not constitute improper comment on his silence (see People v Bido, 235AD2d 288, 289 [1997], lv denied 89 NY2d 1009 [1997]).
Defendant's claim that he was deprived of a fair trial by various remarks made by theprosecutor during his opening statement and summation is unpreserved for appellatereview, as his counsel did not object to the comments in question (see People v Leonard, 83AD3d 1113, 1117 [2011], affd 19 NY3d 323 [2012]). We are unpersuadedby defendant's claim that this failure deprived him of meaningful representation.Ineffective assistance of counsel does not arise " 'from counsel's failure to make a motionor argument that has little or no chance of success' " (People v Bahr, 96 AD3d 1165, 1167 [2012], lvdenied 19 NY3d 1024 [2012], quoting People v Caban, 5 NY3d 143, 152 [2005]). Here, most ofthe challenged remarks were fair comments on the evidence; some of the statements thatdefendant now objects to merely highlighted the undisputed evidence that the victim wasleft alone in a deserted, trash-strewn area, and others were made in the course of arguingthat defendant's statements to police were inconsistent with one another and with theevidence. The prosecutor's use of the word "I" in commenting on defendant's demeanor"was merely stylistic and not an impermissible expression of personal opinion" (People v Lamont, 21 AD3d1129, 1131-1132 [2005], lv denied 6 NY3d 835 [2006]; see People vGrajales, 294 AD2d 657, 658 [2002], lv denied 98 NY2d 697 [2002]; seealso People v Morgan, 66 NY2d 255, 259 [1985]; compare People v Wlasiuk, 32AD3d 674, 681 [2006], lv dismissed 7 NY3d 871 [2006]; People vRussell, 307 AD2d 385, 386-387 [2003]). Although some of the prosecutor'slanguage was arguably inflammatory, this was not so flagrant or pervasive as to requirereversal (see People vMcCall, 75 AD3d 999, 1002 [2010], lv denied 15 NY3d 894 [2010]; People v McCombs, 18 AD3d888, 890 [2005]). As the prosecutor's remarks did not deprive defendant of a fairtrial, his counsel was not ineffective for failing to object to them (see People v Sudler, 75 AD3d901, 906 [2010], lv denied 15 NY3d 956 [2010]).
Defendant's remaining allegations of ineffective assistance of counsel areunpersuasive. [*5]Defendant has not identified anymaterials that his counsel failed to obtain in pretrial discovery, and we note that thePeople employed an open file discovery policy (see People v Moyer, 75 AD3d 1004, 1007 [2010]). Therecord reveals that defense counsel actively participated in Huntley andWade hearings, and made posthearing submissions that County Courtcharacterized as "very good." Defendant has not shown that other pretrial motions orhearings were necessary or had any likelihood of success (see People vWorkman, 277 AD2d 1029, 1031-1032 [2000], lv denied 96 NY2d 764[2001]; compare People v Kirk, 290 AD2d 805, 807-808 [2002]). Counsel alsoapplied—albeit unsuccessfully—for funds to retain a DNA expert. Viewingthe record as a whole, counsel pursued a consistent, cogent theory of defense, madesuccessful objections, engaged in thorough cross-examination of the People's witnesses,and otherwise provided defendant with "meaningful representation" (People vBaldi, 54 NY2d 137, 147 [1981]; see People v Jones, 101 AD3d 1241, 1243 [2012], lvdenied 21 NY3d 944 [2013]).
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: County Court grantedthe People's motion to dismiss the criminal sexual act conviction as a lesser includedoffense, as recorded in the certificate of conviction.
Footnote 2: Defendant's motionstated that "rates for medical experts and a CV for a forensic DNA expert" were attached,but there is no such attachment in the record. Defendant's posttrial motion to set aside thejury verdict asserted that the cost of hiring a DNA expert before trial would haveexceeded $5,000.
Footnote 3: Defendant asserted thatthe DNA report could not have been produced earlier as the relative who paid for it couldnot afford to do so before the trial.
Footnote 4: Notably, defensecounsel had also warned jurors during his opening statement that they would seedisturbing photographs of the victim's injuries.