| People v Kessler |
| 2014 NY Slip Op 08174 [122 AD3d 1402] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAlexander J. Kessler, Also Known as Alexander Jacob Kessler,Appellant. |
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of counsel),for defendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered March 5, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal sexual act in the first degree, criminal sexual act in the third degree, sexualabuse in the first degree, endangering the welfare of a child and unlawfully dealing witha child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, criminal sexual act in the first degree (Penal Law§ 130.50 [2]), criminal sexual act in the third degree (§ 130.40[2]), and sexual abuse in the first degree (§ 130.65 [2]). Defendant isconvicted of engaging in oral and manual contact with the vaginal area of his 16-year-oldvictim, who was in a physically helpless condition after drinking alcohol and smokingmarijuana with defendant at a party hosted by defendant and his wife, the victim's sister.Defendant failed to preserve for our review his contention that the People failed topresent legally sufficient evidence with respect to the victim's age (see People vGray, 86 NY2d 10, 19 [1995]). In any event, that contention is without meritinasmuch as the victim stated her date of birth during her testimony and explained thatshe was testifying on her 17th birthday (see People v Chaffee, 30 AD3d 763, 764 [2006], lvdenied 7 NY3d 846 [2006]).
We reject defendant's further contention that the evidence was legally insufficient toestablish that he was over the age of 21. The victim testified that defendant was 26 yearsold, and a police witness testified that defendant was not less than 25 years old. Inaddition, defendant's friend testified that he and defendant had been friends since theystarted high school 14 years before and that everyone at the party, with the exception ofthe victim, was over the age of 21. We reject defendant's further contention that theevidence was legally insufficient to establish that the victim was physically helpless andthus incapable of consenting to the sexual acts. The victim testified that she was veryintoxicated and that she "passed out" and awoke to feeling defendant's finger in hervagina, that she passed out again and awoke during the time that defendant's mouth wason her vagina, and that she awoke in the morning to find her pants and underwear on thefloor. That evidence is legally sufficient to support the jury's finding that the victim wasphysically helpless at the time the offenses occurred (see People v Fuller, 50 AD3d 1171, 1174 [2008], lvdenied 11 NY3d 788 [2008]). Indeed, "a person who is sleeping is physicallyhelpless for the purposes of consenting to [sexual contact and oral sexual conduct],particularly where the sleep was drug and alcohol induced" (id. [internalquotation marks omitted]; seePeople v Smith, 16 AD3d 1033, 1034 [2005], affd 6 NY3d 827 [2006],cert denied 548 US 905 [2006]). Viewing the evidence in light of the elements ofthe crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
[*2] Defendant contends that County Court abused itsdiscretion in denying his motion for a mistrial based upon the People's failure, prior tothe beginning of the trial, to provide him with a medical report reflecting that the victimwas prescribed a certain medication used to treat depression as required by theircontinuing Brady obligation and CPL 240.20 (c). Defendant argued that apotential side effect of the medication was "lucid dreams" and that, if he had beenprovided with the report sooner, he would have consulted with an expert. The prosecutorexplained that he had just learned of the existence of the report a couple of days beforetrial and promptly turned it over to defense counsel. The court determined that the Peopleshould have turned over the report sooner, but denied the mistrial motion based upon thewide use of the medication and the speculative connection of a potential side effect tothis case, noting that it had reviewed in camera the grand jury minutes and the victim'scounseling records.
As an initial matter, we note that defendant failed to preserve for our review hiscontention that the failure to provide the report sooner constituted a Bradyviolation (see People vAbuhamra, 107 AD3d 1630, 1631 [2013], lv denied 22 NY3d 1038[2013]; People v Benton, 87AD3d 1304, 1305 [2011], lv denied 19 NY3d 862 [2012]). In any event,defendant received the report and used it to cross-examine the victim and her counselor(see People v Bernard, 115AD3d 1214, 1215 [2014], lv denied 23 NY3d 1018 [2014]), and weconclude that earlier disclosure of the report would not have changed the outcome of thetrial (see People v Fuentes,12 NY3d 259, 265 [2009], rearg denied 13 NY3d 766 [2009]; cf. People v Carver, 114 AD3d1199, 1199 [2014]).
With respect to the People's violation of their duty pursuant to CPL 240.20 (c) toprovide the medical report, the " 'overriding concern must be to eliminate anyprejudice to the defendant while protecting the interests of society. . . 'Defendant is entitled to a new trial only when the conduct has caused such substantialprejudice to defendant such that he or she has been denied due process of law" (People v Davis, 52 AD3d1205, 1206 [2008], quoting People v Kelly, 62 NY2d 516, 520 [1984]), andthat is not the case here. Defense counsel cross-examined the victim's counselor withrespect to the medication's potential side effect of lucid dreams, which the counselordescribed as "having a dream when you are not sure whether it's real or not," and shetestified that she was unaware of any person who had experienced that potential sideeffect. Furthermore, the victim testified that she had found some of her clothing on thefloor the morning after the party and that she had physical discomfort for three days,neither of which is consistent with a dream.
Defendant contends that the court impermissibly delegated its duty pursuant to CPL270.35 (2) (a) "to make a reasonably thorough inquiry" with respect to whether a jurorwas unable to continue serving by reason of illness (see People v Smith, 304AD2d 364, 365 [2003], lv denied 100 NY2d 566 [2003]). Prior to openingstatements, the court replaced a juror with an alternate, with the consent of both counsel,based upon information it had received from the Commissioner of Jurors that the absentjuror was being treated at the emergency room for chest pains (see id.). Inasmuchas defense counsel consented to the replacement of the juror, we conclude that defendantwaived his present contention. We reject defendant's further contention that the courtabused its discretion in permitting the prosecutor to recall the victim to testify after ashort recess following her direct testimony and before cross-examination, to ask onefurther question, i.e., whether she could identify the person who had committed the actsthat she described in her testimony (see People v Olsen, 34 NY2d 349, 354[1974]; People v Lewis, 222 AD2d 1058, 1059 [1995], lv denied 87NY2d 1021 [1996]).
Contrary to defendant's contention, the court did not abuse its discretion in denyinghis motion to compel the People to comply with his request for a bill of particularsinasmuch as defendant failed to request a bill of particulars within 30 days ofarraignment, and failed to establish good cause for the delay (see CPL 200.95 [3],[5]). We reject defendant's further contention that the lack of a bill of particulars coupledwith the victim's testimony rendered the indictment duplicitous. The victim testified withrespect to two acts committed by defendant; i.e., touching her vagina with his finger andwith his mouth. To the extent that the victim's testimony that defendant touched her thighmay be construed to constitute evidence of sexual contact (see People v Manning, 81AD3d 1181, 1182 [2011], lv denied 18 NY3d 959 [2012]), we conclude thatthe prosecutor's summation made it clear that defendant was charged with touching onlythe victim's vagina and, thus, there is no reasonable possibility that the jury may haveconvicted defendant of different acts (see People v Spencer, 119 AD3d 1411, 1412-1413 [2014],lv denied 24 NY3d 965 [2014]; cf. People v Filer, 97 AD3d 1095, 1096 [2012], lvdenied 19 NY3d 1025 [2012]).
[*3] Wereject defendant's contention that he was deprived a fair trial by prosecutorial misconducton summation. The prosecutor's reference to defendant as a "vicious dog" was a fairresponse to defense counsel's statements, made during jury selection and summation,implying that the victim was not credible. Those statements were to the effect that, aperson who had been bitten by a vicious dog would not return to the home of that dogand would defend himself or herself when attacked by the dog. We conclude that theprosecutor's remark " 'did not exceed the bounds of legitimateadvocacy' " (People vMiller, 104 AD3d 1223, 1224 [2013], lv denied 21 NY3d 1017 [2013]).We further conclude that the failure of defense counsel to object to the comment did notconstitute ineffective assistance of counsel (cf. People v Fisher, 18 NY3d 964, 967 [2012]). We alsoconclude that the failure of defense counsel to demand a bill of particulars did notdeprive defendant of effective assistance of counsel (see People v Buntley, 286AD2d 909, 910 [2001], lv denied 97 NY2d 751 [2002]) and, inasmuch as acontention that testimony rendered an indictment duplicitous need not be preserved forappellate review (see Filer, 97 AD3d at 1096), defense counsel's failure to objectto testimony of the victim on that ground does not constitute ineffective assistance ofcounsel. Finally, we have reviewed defendant's remaining contention and conclude that itis without merit. Present—Scudder, P.J., Smith, Peradotto, Carni and Sconiers,JJ.