| People v Beckingham |
| 2014 NY Slip Op 02810 [116 AD3d 1298] |
| April 24, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vTimothy Beckingham, Appellant. |
—[*1] John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Rose, J. Appeals by permission, (1) from an order of the County Court of OtsegoCounty (Burns, J.), entered July 21, 2011, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment convicting him of the crime of manslaughter in thefirst degree, without a hearing, and (2) from an order of said court, entered September26, 2011, which denied defendant's motion for reconsideration.
Following a jury trial, defendant was convicted of manslaughter in the first degree inconnection with his wife's death. The People established that the victim died as a resultof injuries that she sustained after a physical attack. Defendant, who was the last personto see her alive, admitted that he and the victim had engaged in a physical altercationafter he found her talking on the phone with a former paramour. According to defendant,however, his physical attack consisted only of hitting the victim twice on the head with ahairbrush and throwing a phone at her. In his defense, he presented expert testimony thatthe elevated levels of alcohol and prescription medication found in the victim's system atthe time of her death were lethal, and that the majority of the victim's physical injuries,consisting of 12 fractured ribs and a lacerated liver, were the result of the improperperformance of CPR after she had died of a drug and alcohol overdose.
We affirmed the judgment of conviction on direct appeal, finding, among otherthings, that the verdict was based on legally sufficient evidence and not against theweight of the [*2]evidence. We also found that ajailhouse informant's recantation of his testimony was insufficient to require a new trial(57 AD3d 1098 [2008], lv denied 13 NY3d 742 [2009]). Defendant thereaftermoved to vacate the judgment pursuant to CPL 440.10, and County Court summarilydenied the motion, together with defendant's subsequent motion to renew. With ourpermission, defendant now appeals from both orders.
Defendant's claim that new evidence establishes that he was actually innocent wasproperly denied by County Court. All of defendant's arguments supporting his claim thathe was actually innocent were fully explored at trial and rejected by the jury. Simplystated, none of the evidence relied upon in support of his claim of actual innocence isnew, and his contention that the jury improperly accepted the People's explanation for thecause of death has already been reviewed and determined on the direct appeal(see CPL 440.10 [2] [a]; People v Carter, 105 AD3d 1149, 1149-1150 [2013]; People v Strawbridge, 76AD3d 115, 118-119 [2010], lv denied 15 NY3d 895 [2010]; People v Thompson, 48 AD3d883, 884-885 [2008], lv denied 10 NY3d 965 [2008]; compare People v Hamilton,115 AD3d 12, 17 [2014] [where key witnesses were either not available orprevented from testifying at trial]).
Similarly, defendant's claim of prosecutorial misconduct in connection with thejailhouse informant's recantation was also previously decided against defendant.Specifically, defendant's contentions that the People threatened the informant with alengthy prison sentence and failed to disclose that the informant had been provided abenefit for his testimony were raised and rejected as part of the posttrial motion and ondirect appeal (see CPL 440.10 [2] [a]; People v Carter, 105 AD3d at1149-1150).
County Court also properly denied defendant's contention that he received theineffective assistance of counsel. Each of defendant's arguments with respect to counsel'spreparation of the defense expert, cross-examination of the People's expert and thejailhouse informant, use of the victim's medical records and the handling of the motion toset aside the verdict are merely hindsight disagreements with tactics and do not reflectthat counsel's acts or omissions prejudiced defendant's right to a fair trial (see People v Schulz, 4 NY3d521, 530-531 [2005]; People v Rivera, 71 NY2d 705, 708-709 [1988];People v Saunders, 301 AD2d 869, 872 [2003], lv denied 100 NY2d 542[2003]). Defendant's expert was familiar with the autopsy report prepared by the People'sexpert and directly contradicted the People's theory that the laceration of the victim's liverwas caused by blunt force trauma as opposed to improperly performed CPR. Defensecounsel elicited testimony from defendant's expert that the condition of the liver andinternal bleeding were post mortem, thus presenting a clear dispute for the jury'sresolution. Further, defendant's present claim that counsel failed to use the victim'smedical records to establish her prior mental health issues and abuse of prescriptiondrugs is belied by the trial record, which reflects that these issues were repeatedly raisedbefore the jury. Moreover, counsel's failure to introduce the medical records intoevidence reflects a reasonable strategy, given that some of the records refer to thevictim's "abusive marriage." Viewed in the context of the totality of the circumstances ofthe representation provided, defense counsel pursued a legitimate theory of the case,presented testimony from a renowned expert in support of that theory, made appropriatemotions at all stages of the trial, vigorously challenged the People's proof and cannot beconsidered ineffective (seePeople v Jabaut, 111 AD3d 1140, 1146 [2013], lv denied 11 NY3d1139 [2014]; People vShuaib, 111 AD3d 1055, 1057-1058 [2013]; People v Rosado, 13 AD3d902, 904 [2004], lv denied 4 NY3d 835 [2005]).
We must agree with defendant, however, that a hearing is required on the issue ofjury [*3]tampering. Defendant supported his motion onthat ground with an affidavit from the son of a sheriff's deputy assigned to the courthousewho claimed that, while the trial was occurring, he witnessed his father state in thepresence of a juror, the deputy's mother-in-law, that he knew defendant "was guilty fromday one." Contrary to County Court's conclusion that the affidavit cannot be consideredbecause it is hearsay, it contains material, "sworn allegations substantiating or tending tosubstantiate all the essential facts" that would entitle defendant to relief (CPL 440.30 [4][b]; see People v Satterfield, 66 NY2d 796, 799 [1985]; People v Hennessey, 111AD3d 1166, 1168 [2013]; see also Parker v Gladden, 385 US 363, 364-365[1966]). Although the People submitted sworn affidavits from the deputy and the jurordenying the allegation, they reflect the existence of a factual dispute that should beresolved at a hearing (see CPL 440.30 [5]; People v Hennessey, 111AD3d at 1169; People vDavey, 91 AD3d 1033, 1033 [2012]). Accordingly, we remit for that purpose.To the extent that defendant's motion to renew was based upon additional affidavitsconcerning this issue of jury tampering, it is also remitted for a hearing.
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the orders are reversed, onthe law, and matter remitted to the County Court of Otsego County for furtherproceedings not inconsistent with this Court's decision.