| People v Desmond |
| 2014 NY Slip Op 04268 [118 AD3d 1131] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJohn M. Desmond, Appellant. |
Majorie M. Kirkaldy, Afton, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Veronica M. Krause of counsel),for respondent.
Garry, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered July 3, 2012, upon a verdict convicting defendant of the crime of criminalsexual act in the first degree (two counts).
Defendant was charged by indictment with two counts of criminal sexual act in thefirst degree and one count of attempted rape in the first degree, stemming fromallegations that he sexually assaulted the victim in the Town of Union, Broome County.Following a jury trial, defendant was convicted of the criminal sexual act charges andacquitted of the attempted rape charge. County Court thereafter sentenced defendant, as asecond felony offender, to an aggregate prison term of 14 years, followed by 10 years ofpostrelease supervision. Defendant appeals, and we affirm.
Defendant challenges the legal sufficiency of the evidence establishing that heperformed oral sex on the victim by forcible compulsion, as charged in count two of theindictment, and further that the guilty verdict as to both counts is against the weight ofthe evidence. Although, as defendant concedes, his legal sufficiency claim is unpreservedfor our review, "we necessarily evaluate whether the evidence supports each element ofthe crime[ ] in the course of reviewing the contention that the verdict is contrary to theweight of the evidence" (Peoplev Fancher, 116 AD3d 1084, 1085-1086 [2014]; see People v Greenfield, 112AD3d 1226, 1226 [2013]). Here, to support the convictions, the People wererequired to prove that defendant [*2]engaged in two actsof sexual conduct with the victim "[b]y forcible compulsion" (Penal Law§ 130.50 [1]; see Penal Law § 130.00 [2] [a]; [8]; People v Din, 110 AD3d1246, 1246 [2013], lv denied 22 NY3d 1137 [2014]).
Although numerous witnesses testified at trial, the verdict rested largely on the jury'sassessment of the victim's credibility. The victim testified that, on the evening of July 29,2011, she and her friend, Andrea Hertzog, were consuming alcohol at a bar in BroomeCounty, when they met—for the first time—defendant and his friend,Shawn Travis. After the victim was involved in an altercation with another female at thebar, the foursome proceeded to a second bar, where they consumed more alcohol, andthey then decided to go swimming at a nearby creek. Upon arriving, Hertzog and Traviswent off together, and defendant offered to walk with the victim down to the creek. Thevictim testified that, as she and defendant were walking, he pushed her up against theflood wall, "pinning her," placed his hand over her mouth to stifle her calls for help, andtold her that she was going to engage in various sexual acts with him. After asking thevictim if she was "done struggling," he took his penis out of his pants and put it in hermouth, warning that "if [she] bit him, he would punch [her] in the face." The victimturned her head, gagging. Defendant then unbuckled the victim's belt and proceeded toput his mouth "onto [her] vagina." The victim began to hit defendant as he wasperforming oral sex on her. Defendant "jumped up" and punched her in the face, therebyenabling her to break free and run away.
Hertzog and Travis each testified that they heard the victim scream and thenobserved her running towards them. According to these two witnesses, the victim wasvisibly distraught and "covered" in blood. In her testimony the victim indicated that sheput her shorts back on in front of Hertzog; however, Hertzog testified that, when thevictim reached her, she was already wearing her shorts. Defendant was able to bring tolight additional aspects of the victim's account that were inconsistent with the testimonyof other witnesses, and the victim acknowledged that, when she gave her initial statementto the police, she withheld certain details because she was scared and uncomfortable withthe male police officer who was taking her statement. The jury also had before it thevideotaped interview of defendant, in which he gave conflicting accounts of whatoccurred, initially denying any sexual contact with the victim and ultimately admittingthat he performed oral sex on the victim and that she performed oral sex on him, butmaintaining that it was consensual.
Such inconsistencies and the conflicting testimony—which were fullyexplored by defendant on cross-examination—created issues of credibility for thejury to resolve (see People vFernandez, 106 AD3d 1281, 1282-1283 [2013]; People v Simonetta, 94 AD3d1242, 1244 [2012], lv denied 19 NY3d 1029 [2012]; People v Shofkom, 63 AD3d1286, 1287 [2009], lv denied 13 NY3d 799 [2009], appeal dismissed13 NY3d 933 [2010]). " 'Great deference is accorded to the fact-finder'sopportunity to view the witnesses, hear the testimony and observe demeanor' "(People v Romero, 7 NY3d633, 644 [2006], quoting People v Bleakley, 69 NY2d 490, 495 [1987]).Although we find that a different verdict would not have been unreasonable (seePeople v Bleakley, 69 NY2d at 495), upon deferring to the jury's credibilitydeterminations and examining and weighing the conflicting proof in the record, weconclude that the verdict on both counts was supported by the weight of the credibleevidence (see People vMiller, 112 AD3d 1061, 1063 [2013]; People v Din, 110 AD3d at1247-1248; People v Lapi,105 AD3d 1084, 1086 [2013], lv denied 21 NY3d 1043 [2013]).
We disagree with defendant's next contention that County Court erred in denying his[*3]request for a Dunaway hearing. A motionseeking suppression of evidence "must state the ground or grounds of the motion andmust contain sworn allegations of fact . . . supporting such grounds" (CPL710.60 [1]). " 'Hearings are not automatic or generally available for the asking byboilerplate allegations' " (People v Bryant, 8 NY3d 530, 533 [2007], quotingPeople v Mendoza, 82 NY2d 415, 422 [1993]; see People v Burton, 6 NY3d584, 587 [2006]). In his omnibus motion, defendant sought "a hearing to address thepossible grounds for suppression set forth under [CPL 60.45]" but, as he acknowledgesin his brief, failed to set forth any sworn allegations of fact supporting this request.Accordingly, County Court was permitted to deny the request for a Dunawayhearing (see People vCarota, 93 AD3d 1072, 1076 [2012]; People v Gilmore, 72 AD3d 1191, 1192 [2010]; People v Jenkins, 64 AD3d993, 994 [2009]; compare People v Bryant, 8 NY3d at 534), and weconclude that the denial was not an abuse of discretion.[FN1]
While defendant argues that County Court erred in permitting the People to impeachtheir own witnesses by questioning those witnesses about any prior criminal convictions,defendant never objected to that line of questioning, thus rendering this issueunpreserved for our review (see CPL 470.05). In any event, there is no indicationin the record that the People made the foregoing inquiries to discredit their ownwitnesses; rather, the testimony was elicited "to mitigate the damaging effect thisinformation would have had if elicited on cross-examination" (People v Johnson, 91 AD3d1121, 1123 [2012], lv denied 18 NY3d 959 [2012]; see CPL 60.40;People v Wiltshire, 96AD3d 1227, 1230 [2012], lv denied 22 NY3d 1204 [2014]; compare People v Nunez, 82AD3d 1128, 1129-1130 [2011], lv denied 16 NY3d 898 [2011]).
Similarly unpreserved is defendant's contention that County Court erred in permittingthe victim to testify without a proper foundation concerning a "bite mark on [her] leg"that she sustained during the sexual assault. Defendant voiced only a general objection inresponse to that testimony (see People v Romero, 7 NY3d at 912; People vTonge, 93 NY2d 838, 839-840 [1999]; People v Heesh, 94 AD3d 1159, 1163 [2012], lvdenied 19 NY3d 961 [2012]) and, moreover, on cross-examination, he elicitedtestimony from the victim establishing that she observed that "[t]here were teeth marksin" the bite mark (see People v Carroll, 300 AD2d 911, 915-916 [2002], lvdenied 99 NY2d 626 [2003]). In any event, we do not agree with defendant that thevictim's testimony pertaining to the alleged bite mark constituted improper opinion [*4]testimony by a lay witness (see People v Dax, 233AD2d 177, 178 [1996]).[FN2]
Defendant further contends that County Court should have provided the jury with acorroboration charge (see CPL 60.50; CJI2d[NY] Corroboration of a Confession;see also People v Daniels, 37 NY2d 624, 629 [1975]). Defendant did make aninitial request for a "[s]tatement corroboration charge." County Court replied that,although the victim's testimony provided the necessary corroboration, the court wouldpermit defendant an opportunity to locate such a charge during the lunch break andrevisit the issue. Defendant thereafter failed to raise the issue again and, at the conclusionof the charging conference, affirmatively indicated that there were no outstandingcharging requests that the court needed to address. Based on those facts, we find that thiscontention is unpreserved for our review (see CPL 470.05 [2]; People vMorin, 192 AD2d 791, 792 [1993], lv denied 81 NY2d 1077 [1993]). In anyevent, were this issue properly before us, we would conclude that defendant's admissionsto police were adequately corroborated by the victim's testimony and other evidence(see People v Rutledge, 286 AD2d 962, 962 [2001], lv denied 97 NY2d687 [2001]; People v Buster, 245 AD2d 460, 461 [1997], lv denied 91NY2d 924 [1998]; People v Maille, 136 AD2d 829, 830 [1988]).
Defendant further contends that he was denied meaningful representation. Indeciding this claim, we review " 'the evidence, the law, and the circumstances ofa particular case, viewed in totality and as of the time of the representation' " (People v Shuaib, 111 AD3d1055, 1057 [2013], quoting People v Baldi, 54 NY2d 137, 147 [1981]; accord People v Oathout, 21NY3d 127, 128 [2013]). To prevail on this claim, defendant must" 'demonstrate the absence of strategic or other legitimate explanations' forcounsel's allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152 [2005], quotingPeople v Rivera, 71 NY2d 705, 709 [1988]). Defendant faults trial counsel forfailing to, among other things, request a negative inference instruction, object to thePeople's alleged impeachment of their own witnesses, and seek a pretrial ruling regardingadmissibility of the "bite mark" evidence. However, where, as here, trial counsel fails tomake certain motions or raise issues that had "little or no chance of success," a defendantis not deprived of meaningful representation (People v Stultz, 2 NY3d 277, 287 [2004]; accord People v Brock, 107AD3d 1025, 1029 [2013], lv denied 21 NY3d 1072 [2013]; People v Bahr, 96 AD3d1165, 1167 [2012], lv denied 19 NY3d 1024 [2012]). Similarly, neither trialcounsel's failure to properly request a Dunaway hearing (see People vRivera, 71 NY2d at 709; People v Jackson, 48 AD3d 891, 893-894 [2008], lvdenied 10 NY3d 841 [2008]) nor counsel's failure to preserve defendant's legalsufficiency claim rises to the level of ineffective assistance of counsel (see People v Jones, 101 AD3d1241, 1242-1243 [2012], lv denied 21 NY3d 944 [2013]; People v McRobbie, 97 AD3d970, 972 [2012], lv denied 20 NY3d 934 [2012]), as both motions would[*5]likely have been denied on the merits. Based on thetotality of trial counsel's representation, we conclude that defendant received meaningfulrepresentation (see People vBeckingham, 116 AD3d 1298, 1300 [2014]; People v Hughes, 114 AD3d 1021, 1024-1025 [2014];People v Shuaib, 111 AD3d at 1057-1058).
Defendant's contentions that he was denied a fair trial based on the facts that thePeople, among other things, "overcharged" the alleged crimes, improperly paid"inordinate" attention to the victim's injuries, impeached their own witnesses and elicitedan "apparent" in-court identification of defendant and testimony regarding the "bitemark" are all unpreserved for our review (see People v Simmons, 111 AD3d 975, 980 [2013], lvdenied 22 NY3d 1203 [2014]; People v Cade, 110 AD3d 1238, 1241 [2013], lvdenied 22 NY3d 1155 [2014]). Were we to review those contentions, we would findthem to be lacking in merit, and that defendant received a fair trial (see People v Mitchell, 112AD3d 1071, 1074 [2013], lv denied 22 NY3d 1140 [2014]; People vHughes, 111 AD3d at 1173).
Finally, we are unpersuaded that the disparity between the sentence imposed byCounty Court and that originally proposed under the plea offer reflects that defendantwas penalized for exercising his right to go to trial (see People v Olson, 110 AD3d 1373, 1377-1378 [2013]; People v Izzo, 104 AD3d964, 968 [2013], lv denied 21 NY3d 1005 [2013]). In light of thecircumstances of this case, defendant's failure to take responsibility for his actions, andhis criminal history, we do not find that County Court abused its discretion or thatextraordinary circumstances exist that would warrant modification in the interest ofjustice (see People vClairmont, 75 AD3d 920, 924 [2010], lv denied 15 NY3d 919[2010]).
Defendant's remaining contentions, to the extent not specifically addressed, havebeen examined and found to be lacking in merit.
Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:In a related challenge,defendant asserts that the manner in which defendant was read his Miranda rightsduring the video-recorded interview—namely, that the investigator presented therights in an "off-handed and dismissive manner"—supports the conclusion that hedid not knowingly, voluntarily and intelligently waive those rights (see generallyPeople v Williams, 62 NY2d 285, 288-289 [1984]). Based upon our independentreview of the record, we agree with County Court that defendant was properly andadequately informed of his Miranda rights and that he knowingly, voluntarily andintelligently waived those rights (see People v Wolfe, 103 AD3d 1031, 1035 n 1 [2013],lv denied 21 NY3d 1021 [2013]; People v Jaeger, 96 AD3d 1172, 1173-1174 [2012], lvdenied 19 NY3d 997 [2012]; People v Peters, 49 AD3d 957, 959 [2008], lvdenied 10 NY3d 938 [2008]).
Footnote 2:We further rejectdefendant's related contention that County Court erred in failing to provide the jury witha circumstantial evidence charge. During the charging conference, defendant requested a"hybrid direct circumstantial evidence instruction," reasoning that this case is "partly"based on circumstantial evidence. Where, as here, the charges against a defendant are notsupported solely by circumstantial evidence, a circumstantial evidence charge is notrequired (see People vAlnutt, 101 AD3d 1461, 1464 [2012], lv denied 21 NY3d 941 [2013],cert denied 571 US — 134 S Ct 1035 [2014]; People v Pagan, 97 AD3d963, 968 [2012], lv denied 20 NY3d 934 [2012]).