| People v Leonard |
| 2015 NY Slip Op 05314 [129 AD3d 1592] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRichard M. Leonard, Appellant. (Appeal No. 1.) |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered March 25, 2010. The judgment convicted defendant, upon a jury verdict, ofsexual abuse in the first degree and unlawfully dealing with a child in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65[2]) and unlawfully dealing with a child in the first degree (§ 260.20). Inappeal No. 2, defendant appeals from an order denying his motion seeking to vacate thejudgment of conviction pursuant to CPL 440.10 on the grounds that he was deniedeffective assistance of counsel and that the grand jury proceedings were impaired byprosecutorial misconduct.
Addressing first appeal No. 2, we conclude that County Court properly deniedwithout a hearing that part of defendant's CPL 440.10 motion alleging that he was deniedeffective assistance of counsel "inasmuch as trial counsel, the only person who couldhave provided any material information not already before the motion court, wasdeceased" (People vAbuhamra, 107 AD3d 1630, 1630 [2013], lv denied 22 NY3d 1038[2013] [internal quotation marks omitted]). With respect to the merits of the CPL 440.10motion, defendant contends that he was denied effective assistance of counsel becausetrial counsel failed to utilize, as part of his defense strategy, certain prior statements madeby a witness to the police that were allegedly inconsistent with the witness's trialtestimony and because trial counsel failed to request a limiting instruction afterintroduction of certain evidence admitted under a Molineux exception (seePeople v Molineux, 168 NY 264, 293 [1901]). We see no basis for grantingpostconviction relief to defendant on either ground.
Under New York's "flexible standard" of evaluating claims of ineffectiverepresentation (People v Benevento, 91 NY2d 708, 712 [1998]), so long as "theevidence, the law, and the circumstances of a particular case, viewed in totality and as ofthe time of the representation, reveal that the attorney provided meaningfulrepresentation," counsel's performance will not be found ineffective (People vBaldi, 54 NY2d 137, 147 [1981]). "Isolated errors in counsel's representationgenerally will not rise to the level of ineffectiveness, unless the error is 'so serious thatdefendant did not receive a fair trial' " (People v Henry, 95 NY2d 563,565-566 [2000]; see People v Flores, 84 NY2d 184, 188-189 [1994]). Moreover,a defendant advancing an ineffectiveness claim based on particular errors in counsel'sperformance must "demonstrate the absence of strategic or other legitimate explanations"for the alleged deficiencies (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Taylor, 1 NY3d174, 177 [2003]). With respect to the first ground asserted by defendant, evenassuming, arguendo, that the evidence of the witness's prior statements to the policewould have been admissible, either to impeach that witness or on defendant's direct case,we conclude [*2]that defendant has not established thattrial counsel's failure to utilize those statements demonstrated a lack of strategy. Rather,we conclude that defendant's contention reflects a mere disagreement with trial strategy,which does not amount to ineffective assistance of counsel (see People v Stepney, 93 AD3d1297, 1298 [2012], lv denied 19 NY3d 968 [2012]; People v Douglas, 60 AD3d1377, 1377 [2009], lv denied 12 NY3d 914 [2009]).
With respect to the second ground asserted by defendant, we conclude that any erroron trial counsel's part in not requesting a limiting instruction regarding the evidence ofpast uncharged crimes does not rise to the level of ineffective assistance of counsel whenthat error is viewed in light of trial counsel's "entire representation of defendant" (People v Oathout, 21 NY3d127, 132 [2013]; see Flores, 84 NY2d at 188). We reject defendant's relatedcontention in appeal No. 2 that the integrity of the grand jury proceedings was impairedby the prosecutor's failure to introduce the witness's prior statements to the police.Dismissal of an indictment on the ground that "the integrity thereof is impaired andprejudice to the defendant may result" (CPL 210.35 [5]) is an "exceptional remedy"(People v Darby, 75 NY2d 449, 455 [1990]). Dismissal is "limited to thoseinstances where prosecutorial wrongdoing, fraudulent conduct or errors potentiallyprejudice the ultimate decision reached by the [g]rand [j]ury" (People v Huston,88 NY2d 400, 409 [1996]), and "[t]he People have broad discretion in presenting a caseto the grand jury and need not 'present all of their evidence tending to exculpate theaccused' " (People vRadesi, 11 AD3d 1007, 1007 [2004], lv denied 3 NY3d 760 [2004],quoting People v Mitchell, 82 NY2d 509, 515 [1993]; see People v Carr, 99 AD3d1173, 1176 [2012], lv denied 20 NY3d 1010 [2013]). Here, we conclude thatthe prior statements made by the witness to the police were not "entirely exculpatory"(People v Gibson, 260 AD2d 399, 399 [1999], lv denied 93 NY2d 924[1999]), and that the failure to present those statements to the grand jury "did not resultin a needless or unfounded prosecution" (People v Smith, 289 AD2d 1056, 1057[2001], lv denied 98 NY2d 641 [2002] [internal quotation marks omitted]).
We reject defendant's contention in appeal No. 1 that the court erred in admittingevidence of defendant's prior uncharged sexual abuse of the victim which, according tothe victim's testimony, also occurred while she was unconscious from alcoholintoxication. "The general rule is that evidence of . . . uncharged crimes maynot be offered to show defendant's bad character or his propensity towards crime but maybe admitted only if the acts help establish some element of the crime under considerationor are relevant because of some recognized exception to the general rule" (People vLewis, 69 NY2d 321, 325 [1987]; see Molineux, 168 NY at 293). Here, weconclude that the evidence of uncharged crimes was admissible to establish intent andmotive under the first two exceptions specifically identified in Molineux'sillustrative and nonexhaustive list (see id. at 293; see also People vAlvino, 71 NY2d 233, 241-242 [1987]; People v Calvano, 30 NY2d 199,205-206 [1972]). Specifically, the disputed evidence was relevant to the issue whetherdefendant intended to commit the instant crime for the purpose of sexual gratification(see Penal Law §§ 130.00 [3]; 130.65 [2]), and to establishdefendant's motive in providing a large quantity of alcohol to the victim. Consequently,"the evidence in this case was not propensity evidence, but was probative of[defendant's] motive and intent to [sexually] assault his victim" (People v Dorm, 12 NY3d16, 19 [2009]). Moreover, the evidence was also admissible under a more recentlyrecognized Molineux exception, i.e., to "provide[ ] necessary backgroundinformation on the nature of the relationship" between defendant and the victim(Dorm, 12 NY3d at 19; see People v Leeson, 12 NY3d 823, 827 [2009]) and thus,we conclude that the court did not abuse its discretion in allowing the People to presentthe evidence at issue (see People v Ventimiglia, 52 NY2d 350, 359-360 [1981]).Furthermore, we reject defendant's contention in appeal No. 1 that the court abused itsdiscretion in admitting the evidence of the prior uncharged sexual abuse because a grandjury did not indict defendant of that crime. Defendant has failed to provide any proof inthe record to support that claim and, in any event, there is no such requirement for theadmission of prior uncharged crimes under Ventimiglia (see id. at359-362; see also People v Richardson, 148 AD2d 476, 477 [1989]).
Finally, we agree with defendant and the People that the certificate of conviction,which recites that defendant was convicted of the crime of sexual abuse in the firstdegree occurring on or about June 5, 2005, must be amended to reflect the correct dateon which the crime for which defendant was convicted occurred, namely, on or aboutOctober 6-7, 2007 (see People vYoung, 74 AD3d 1864, 1865 [2010], lv denied 15 NY3d 811 [2010]; see also People v Brooks, 46AD3d 1374, 1374 [2007]). Present—Centra, J.P., Carni, Sconiers, Valentinoand Whalen, JJ.