| People v Dallas |
| 2014 NY Slip Op 05083 [119 AD3d 1362] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vRichard Dallas, Appellant. |
James S. Kernan, Public Defender, Lyons (Shirley A. Gorman of counsel), fordefendant-appellant.
Richard M. Healy, District Attorney, Lyons (Melvin Bressler of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.),rendered July 17, 2012. The judgment convicted defendant, upon a nonjury verdict, ofpredatory sexual assault against a child, assault in the first degree (two counts), assault inthe first degree as a sexually motivated felony (two counts) and endangering the welfareof a child.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing those parts convicting defendant of assault in the first degree undercounts four and six of the indictment and dismissing those counts, and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him of, inter alia,predatory sexual assault against a child (Penal Law § 130.96), two counts ofassault in the first degree (§ 120.10 [3], [4]), and two counts of assault inthe first degree as a sexually motivated felony (§§ 120.10 [3], [4];130.91), all arising from a sexual assault upon a nine-month-old infant girl. Defendantcontends that his repeated statements to the police that he wished to leave the policestation where he was being interrogated should be viewed as the functional equivalent ofa request for an attorney, and that County Court therefore erred in refusing to suppress allof his statements thereafter made to the police. In addition, he contends that thestatements were not voluntary based upon alleged deception and coercion by the policeofficers who questioned him, especially in light of his limited intellect. We reject thosecontentions.
It is well settled that the right to counsel indelibly attaches when a defendantunequivocally requests an attorney, and he or she may not be questioned further in theabsence of an attorney (see People v Esposito, 68 NY2d 961, 962 [1986]).Conversely, where a defendant's request for an attorney is not unequivocal, the right tocounsel does not attach and therefore does not affect the admissibility of the defendant'ssubsequent statements (see People v Hicks, 69 NY2d 969, 970 [1987], reargdenied 70 NY2d 796 [1987]). "Whether a particular request is or is not unequivocalis a mixed question of law and fact that must be determined with reference to thecircumstances surrounding the request[,] including the defendant's demeanor [and]manner of expression[,] and the particular words found to have been used by thedefendant" (People v Glover, 87 NY2d 838, 839 [1995]).
[*2] Applying that case law to the facts before us, we rejectdefendant's contention that his statements that he wanted to leave the police stationshould be deemed a request for an attorney. Most significantly, the police ended theirquestioning after defendant did in fact indicate that he wished to speak with an attorney.Thus, his contentions on appeal that his mental limitations prevented him fromspecifically asking for an attorney are belied by his specific request for counsel.Similarly, we reject defendant's contention that, taking into account his mentallimitations, deception and coercion by the police were such that his statements were not a"free and unconstrained choice by [their] maker" (Culombe v Connecticut, 367US 568, 602 [1961]). Inasmuch as defendant never admitted committing any sexual actwith the child and eventually exercised his rights and asked for an attorney, we cannotconclude that the "interrogation . . . completely undermined[ ] defendant'sright not to incriminate himself" (People v Thomas, 22 NY3d 629, 642 [2014]). We haveconsidered defendant's remaining contentions with respect to the court's denial of hisrequest to suppress his statements to the police, and we conclude that they are withoutmerit.
Contrary to defendant's further contention, the People established at the suppressionhearing that he voluntarily permitted the police to swab his cheek for the purpose ofobtaining his DNA for testing purposes, and thus the court properly admitted the DNAtest results based thereon in evidence. "[T]he fact that the police officers did not advisethe defendant . . . of [his] right to refuse to consent does not, by itself,negate the consent otherwise freely given" (People v Auxilly, 173 AD2d 627,628 [1991], lv denied 78 NY2d 1125 [1991]; see People v Osborne, 88 AD3d 1284, 1285 [2011], lvdenied 19 NY3d 999 [2012], reconsideration denied 19 NY3d 1104[2012]).
Also without merit is defendant's contention that he was denied effective assistanceof counsel by several actions or omissions by his attorneys, including their failure toattend his competency evaluation and their failure to object to the introduction of certainevidence. We conclude that "defendant failed to demonstrate that defense counsel lackeda strategic or legitimate explanation for" the actions and omissions that he now contendswere required (People vWilliams, 55 AD3d 1449, 1451 [2008], lv denied 12 NY3d 789 [2009];see People v Gonzalez, 62AD3d 1263, 1265 [2009], lv denied 12 NY3d 925 [2009]; see generallyPeople v Benevento, 91 NY2d 708, 712 [1998]). Viewing defense counsels'representation in totality and as of the time of the representation, we conclude thatdefendant received meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]). We likewise reject defendant's contention that the People failedto establish a proper chain of custody with respect to the items in the rape kit that wereadmitted in evidence. To the contrary, "[t]he police provided sufficient assurances of theidentity and unchanged condition of th[at] evidence . . . , and thus anyalleged gaps in the chain of custody went to [its] weight . . . , not itsadmissibility" (People vKennedy, 78 AD3d 1477, 1478 [2010], lv denied 16 NY3d 798 [2011];see People v Hawkins, 11NY3d 484, 494 [2008]; People v Shinebarger, 110 AD3d 1478, 1479 [2013]).
Defendant failed to preserve for our review his further contention that he did notknowingly, intelligently and voluntarily waive his right to a jury trial (see People v Reed, 15 AD3d911, 911 [2005], lv denied 4 NY3d 890 [2005]; People v Williams, 5AD3d 1043, 1044 [2004], lv denied 2 NY3d 809 [2004]). In any event, thatcontention is without merit inasmuch as "[d]efendant waived his right to a jury trial inopen court and in writing in accordance with the requirements of NY Constitution, art I,§ 2 and CPL 320.10 (2) . . . , and the record establishes thatdefendant's waiver was knowing, voluntary and intelligent" (People v Wegman, 2 AD3d1333, 1334 [2003], lv denied 2 NY3d 747 [2004]; see generally People v Smith, 6NY3d 827, 828 [2006], cert denied 548 US 905 [2006]). Defendant'scontentions attributing the underlying reason for the waiver to the convenience or otherpurposes of his attorneys are outside the record and are properly raised by way of amotion pursuant to CPL article 440 (see People v Magnano, 158 AD2d 979, 979[1990], affd 77 NY2d 941 [1991], cert denied 502 US 864[1991]).
[*3] We agree with defendant,however, that the fourth and sixth counts of the indictment, each charging him withassault in the first degree, must be reversed and dismissed pursuant to CPL 300.30 (4) asinclusory concurrent counts of counts five and seven, each charging him with assault inthe first degree as a sexually motivated felony. We therefore modify the judgmentaccordingly. CPL 300.30 (4) provides in pertinent part that "[c]oncurrent counts are'inclusory' when the offense charged in one is greater than any of those charged in theothers and when the latter are all lesser offenses included within the greater." A crime isa lesser included offense of another where "it is theoretically impossible to commit thegreater crime without at the same time committing the lesser . . . [, as]determined by a comparative examination of the statutes defining the two crimes, in theabstract" (People v Glover, 57 NY2d 61, 64 [1982]; see People v Davis, 14 NY3d20, 22-23 [2009]; People vMiller, 6 NY3d 295, 302-303 [2006]). Here, "defendant could only commit thesexually motivated felon[ies] if it was proven that he had committed the underlying[assaults] and that the [assaults were] committed for his own sexual gratification" (People v Judware, 75 AD3d841, 846 [2010], lv denied 15 NY3d 853 [2010]; see People v Rodriguez, 97AD3d 246, 253 [2012], lv denied 19 NY3d 1028 [2012]). Thus, theunderlying assault counts charging assault in the first degree should have been dismissedas inclusory concurrent counts of the counts charging assault in the first degree as asexually motivated felony upon defendant's conviction of the latter crime (seeCPL 300.40 [3] [b]).
Defendant further contends that the conviction of one of the two counts of assault inthe first degree as a sexually motivated felony, i.e., the count pursuant to Penal Law§§ 130.91 and 120.10 (3), is not supported by legally sufficientevidence that he acted under circumstances evincing a depraved indifference to humanlife, or that he was aware of and disregarded a grave risk of death to the victim. We rejectthat contention. Here, the court "heard testimony—including medical and forensicproof—that defendant inflicted injuries on a [nine]-month-old child by [forciblyanally sodomizing] the child so brutally as to cause" a series of tears in the exterior of heranus and rectum, and a two-inch tear in her sigmoid colon (People v Barboni, 21 NY3d393, 401 [2013]). In addition, after defendant told a witness that the infant was"bleeding from the butt" shortly after the incident and the witness advised him to obtainmedical care for the child, defendant instead placed sanitary napkins on the infant'sposterior and attempted to persuade the infant's mother that nothing was wrong with theinfant. It is well settled that, "[i]n light of the child's vulnerability and utter dependenceon a caregiver, defendant's post-assault failure to treat the child or report [her] obviousinjuries must be considered in assessing whether depraved indifference was shown"(id. at 402). The evidence further established the presence of sperm in the infant'speritoneal cavity, in her diaper and on her vagina, with DNA that was consistent withthat of defendant. The People also presented expert medical testimony establishing thatthe sperm could only have entered the infant's peritoneal cavity through the tear in hercolon, and that, to a reasonable degree of medical certainty, the tear was caused by theinsertion of an adult male penis. "Knowing the brutal origin of the injuries and the forcewith which they were inflicted makes it much less likely that defendant was holding outhope . . . that the child's symptoms were merely signs of a trivial injury orillness. Thus, contrary to defendant's contention, it is significant that defendant was theactor who had inflicted the injuries in the first place" (id.). We therefore concludethat, "[g]iven defendant's knowledge of how the injuries were inflicted and his failure toseek immediate medical attention, either directly or via consultation with his girlfriend. . . , there was sufficient evidence for [the court] to conclude that defendantevinced a wanton and uncaring state of mind" (id.).
Furthermore, with respect to the requirement that the People establish recklessness,i.e., that defendant was aware of and consciously disregarded a grave risk of death to theinfant (see Penal Law §§ 15.05 [3]; 120.10 [3]), we concludethat, "[g]iven the level of force required to inflict these . . . injuries anddefendant's attempt to cover up his conduct, the [court] reasonably [*4]could have concluded that defendant was aware of anobvious risk of death to the infant" (People v Maddox, 31 AD3d 970, 972 [2006], lvdenied 7 NY3d 868 [2006]), and that he disregarded that risk.
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Fahey, Peradotto, Sconiers and Valentino, JJ.