| People v Mehmood |
| 2013 NY Slip Op 08461 [112 AD3d 850] |
| December 18, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Naasir Mehmood, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R.Eisner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered May 21, 2009, convicting him of course of sexual conduct againsta child in the first degree, course of sexual conduct against a child in the second degree,criminal sexual act in the second degree, and endangering the welfare of a child (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, and a new trial is ordered.
The defendant was charged with committing various sexual offenses against hisparamour's 5-year-old son, 11-year-old daughter, and 12-year-old daughter (hereinaftercollectively the complainants). After a jury trial, the defendant was convicted of courseof sexual conduct against a child in the first and second degrees, criminal sexual act inthe second degree, and two counts of endangering the welfare of a child.
The defendant's challenge to the legal sufficiency of the evidence supporting hisconvictions, raised in his main brief and pro se supplemental brief, is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 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 againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). Contrary to the defendant's contention,the complainants' testimony was not incredible or otherwise unworthy of belief (seePeople v Marcus, 112 AD3d 652, 2013 NY Slip Op 08101 [2d Dept 2013]; People v Hinds, 13 AD3d 554 [2004]; People v [*2]Ross, 262 AD2d 429 [1999]). Further, the fact that thedefendant was acquitted on counts one and two, charging him with sexual abuse in thefirst degree (see Penal Law §§ 130.00 [3]; 130.65 [3]), did notundermine the weight of the evidence supporting the jury's conviction on count three,charging him with endangering the welfare of a child (see Penal Law §260.10 [1]; People v Rayam, 94 NY2d 557, 563 [2000]; People v Allen, 89 AD3d741, 742 [2011]; cf. People v Otway, 71 AD3d 1052 [2010]; People v Franco, 11 AD3d710 [2004]).
The defendant's contention in his main brief that the direct testimony of the People'sexpert on child sexual abuse accommodation syndrome exceeded permissible bounds anddeprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2]; People v Goodman, 21AD3d 906, 907 [2005]) and, in any event, is without merit (see People v Diaz, 20 NY3d569, 575-576 [2013]; People v Spicola, 16 NY3d 441, 466 [2011], certdenied 565 US —, 132 S Ct 400 [2011]; cf. People v Williams, 20 NY3d579, 583, 585 [2013]). Moreover, defense counsel's failure to object to theadmission of this testimony did not constitute ineffective assistance of counsel (see People v Stultz, 2 NY3d277, 287 [2004]; People vMcFarlane, 106 AD3d 836, 837 [2013]).
The defendant further contends in his main brief that certain testimony repeating thefemale complainants' disclosures of his offenses and describing the female complainants'demeanor at the time of the disclosures was irrelevant and constituted improperbolstering. These contentions are also unpreserved for appellate review (see CPL470.05 [2]; People vFlowers, 95 AD3d 1233, 1234 [2012]; People v Santiago, 16 AD3d 600, 600 [2005]) and, in anyevent, are without merit. The testimony did not exceed the allowable level of detailconcerning the alleged incidents permitted under the prompt outcry exception to the ruleagainst hearsay (see People vRosario, 17 NY3d 501, 511 [2011]; People v McDaniel, 81 NY2d 10,17-18 [1993]; People vBernardez, 63 AD3d 1174, 1175 [2009]), and the defendant does not argue thatthe disclosures were not sufficiently prompt to qualify as evidence of prompt outcry.Since the defendant did not raise a meritorious challenge to the admissibility of thetestimony under the prompt outcry exception to the rule against hearsay, the concept ofbolstering is inapplicable (see People v Spicola, 16 NY3d at 452-453; Peoplev Buie, 86 NY2d 501, 509-511 [1995]; People v Farrell, 228 AD2d 693, 694[1996]; People v Williams, 181 AD2d 474, 477 [1992]). Moreover, contrary tothe defendant's contention, the challenged testimony was relevant to corroborate theallegations that the abuse took place (see People v McDaniel, 81 NY2d at 16; People v Shepherd, 83 AD3d1298, 1300 [2011]; Peoplev Miller, 78 AD3d 733, 734 [2010]; People v Jones, 188 AD2d 364[1992]), and to complete the witnesses' narrative of the events (see People v Ludwig, 104AD3d 1162, 1162-1163 [2013], lv granted 21 NY3d 1043 [2013]; People v Rosario, 100 AD3d660, 661 [2012]). In light of the foregoing, defense counsel was not ineffective forfailing to object to the testimony (see People v Stultz, 2 NY3d at 287; Peoplev McFarlane, 106 AD3d at 837).
However, the cumulative effect of the prosecutor's improper comments duringsummation requires a new trial. Although the defendant's contention, raised in his mainbrief and pro se supplemental brief, that certain comments made by the prosecutor onsummation deprived him of a fair trial, is unpreserved for appellate review (seeCPL 470.05 [2]; People vAlexander, 100 AD3d 649, 649-650 [2012]), under the circumstances of thiscase, we nevertheless review the contention in the exercise of our interest of justicejurisdiction (see CPL 470.15 [6] [a]; People v Spann, 82 AD3d 1013, 1015 [2011]).
In summing up, a prosecutor "must stay within the four corners of the evidence andavoid irrelevant and inflammatory comments which have a tendency to prejudice the juryagainst the accused" (People v Spann, 82 AD3d at 1015 [internal quotationmarks omitted]; see People v Ashwal, 39 NY2d 105, 109 [1976]). At trial, thedefendant presented evidence concerning his cooperation with law enforcementauthorities in drug cases against the complainants' mother to establish that thecomplainants had a motive to fabricate their allegations against him. During summation,the prosecutor improperly referred to such evidence as "an elaborate attempt to distract[the jury] from the real issues in this case" (see People v Spann, 82 AD3d at1015; People v Pagan, 2AD3d 879, 880 [2003]; People v Ortiz, 125 AD2d 502, 503 [1986]). Theprosecutor also inaccurately stated that the defendant, who had testified on his ownbehalf, needed "a clarification about which child's vagina he did or did not touch," whenthe defendant, in fact, had asked whether the question concerned his paramour, thecomplainants' mother. In addition, the prosecutor made an irrelevant and inflammatoryargument intended to convince the jury that the [*3]defendant's denials of the sexual abuse allegations in theindictment were implicit admissions that he had abused the complainants outside theperiods of time designated for the charged crimes (see People v Anderson, 83 AD3d 854, 857 [2011];People v Pointer, 262 AD2d 505 [1999]; People v Jorge, 171 AD2d 498[1991]). Furthermore, the prosecutor impugned the defendant's right to testify andimproperly suggested that he lied on the stand, when she referred to him as "anopportunist" who "took the stand, and . . . said what he thought he had tosave himself" (see People vBrown, 26 AD3d 392, 393 [2006]; People v Jorge, 171 AD2d at498-499; People v Torriente, 131 AD2d 793, 794 [1987]). Finally, the prosecutorimpermissibly vouched for the credibility of a witness based on his position as a lawenforcement officer (see Peoplev Moye, 12 NY3d 743, 744 [2009]; People v Anderson, 83 AD3d at856; People v Collins, 12AD3d 33, 37 [2004]). The cumulative effect of these improper comments deprivedthe defendant of a fair trial (seePeople v Riback, 13 NY3d 416, 423 [2009]; People v Calabria, 94NY2d 519, 523 [2000], affd 3 NY3d 80 [2004]; People v Spann, 82AD3d at 1016).
Additionally, for the following reasons, we find that the defendant was deprived ofthe effective assistance of counsel. The defendant's contention, raised in his main briefand pro se supplemental brief, is based, in part, on matter appearing on the record and, inpart, on matter outside the record and, thus, constitutes a " 'mixed claim[ ]' " ofineffective assistance (People vMaxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]).However, in this case, it is evident from the matter appearing on the record that thedefendant was deprived of the effective assistance of counsel (see People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]).
The right to effective assistance of counsel is guaranteed by the Federal and StateConstitutions (see US Const Amend VI; NY Const, art I, § 6; People v Turner, 5 NY3d476, 479 [2005]). "Under the federal standard for ineffective assistance of counsel, adefendant must show that his or her attorney's performance fell below an objectivestandard of reasonableness, and that 'there is a reasonable probability that, but forcounsel's unprofessional errors, the result of the proceeding would have been different' "(People v Bodden, 82AD3d 781, 783 [2011], quoting Strickland v Washington, 466 US 668, 694[1984]). Under the state standard, "the constitutional requirements for the effectiveassistance of counsel 'are met when the defense attorney provides meaningfulrepresentation' " (People v Bodden, 82 AD3d at 783, quoting People v Stultz, 2 NY3d277, 279 [2004]). " 'In reviewing claims of ineffective assistance care must be takento avoid both confusing true ineffectiveness [of counsel] with mere losing tactics andaccording undue significance to retrospective analysis' " (People v Clermont, 95 AD3d1349, 1350-1351 [2012], quoting People v Satterfield, 66 NY2d 796, 798[1985]; see People vMcArthur, 101 AD3d 752, 753-754 [2012]).
Here, the complainants gave detailed testimony regarding the sexual acts allegedlycommitted by the defendant, which included oral sexual conduct, sexual contact betweentwo males, and reciprocal contact. During cross-examination by defense counsel, thePeople's expert on child sexual abuse accommodation syndrome offered testimony thatthe truthfulness of a child's disclosure of sexual abuse could be analyzed by looking atwhether the content is specific and not age-appropriate knowledge. Despite the fact thatthis testimony was inadmissible (see generally De Long v County of Erie, 60NY2d 296, 307 [1983]), and favorable to the People, defense counsel inexplicably askedthe expert to elaborate, eliciting highly damaging testimony that a child's allegations oforal sexual conduct, sexual contact between males, or reciprocal contact would be "ratherunique and idiosyncratic," and more believable than "just a global statement that I wastouched." Thus, defense counsel intentionally elicited inadmissible and undulyprejudicial testimony during cross-examination (see People v Zaborski, 59 NY2d863 [1983]; People v McArthur, 101 AD3d at 754; People v Gavalo, 87 AD3d1014, 1015 [2011]). Defense counsel also was deficient in failing to object to theprosecutor's improper remarks during summation (see People v Fisher, 18 NY3d 964, 967 [2012]; Peoplev McArthur, 101 AD3d at 754). The cumulative effect of defense counsel's errorsdeprived the defendant of the effective assistance of counsel (see People vMcArthur, 101 AD3d at 754). Accordingly, the judgment must be reversed and anew trial ordered for this reason as well.
In light of our determination, the defendant's contention that the sentence imposedwas excessive has been rendered academic.[*4]
The defendant's contentions in his pro sesupplemental brief concerning the indictment are unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, are either academic in light of the factthat the defendant was not convicted of the counts at issue (see People v Marquez, 82AD3d 1123, 1124 [2011]; People v Monday, 309 AD2d 977, 980 [2003]),or without merit. Moreover, the Supreme Court did not improvidently exercise itsdiscretion in limiting the defendant's cross-examination of the oldest complainant aboutirrelevant or marginally relevant matters (see People v Rivera, 98 AD3d 529, 529 [2012]; Peoplev Plumey, 255 AD2d 462, 462 [1998]). Contrary to the defendant's furthercontention in his pro se supplemental brief, the prosecutor accurately summarized thetestimony of the oldest complainant. The defendant's contentions in his pro sesupplemental brief relating to an alleged Brady violation (see Brady vMaryland, 373 US 83 [1963]) and the court's failure to conduct a hearing withrespect to alleged subpoena-tampering are based on matter dehors the record. Theremaining contentions raised in the defendant's pro se supplemental brief are unpreservedfor appellate review (see CPL 470.05 [2]) and, in any event, without merit.
Accordingly, we reverse the judgment and order a new trial. Rivera, J.P., Angiolillo,Hall and Cohen, JJ., concur.