| People v Cassala |
| 2015 NY Slip Op 06176 [130 AD3d 1252] |
| July 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vVincent Cassala, Appellant. |
DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian II of counsel),for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Rose, J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), renderedMay 16, 2012 in Albany County, upon a verdict convicting defendant of the crimes ofattempted rape in the first degree, attempted rape in the third degree, criminal sexual actin the first degree (two counts), criminal sexual act in the third degree (two counts) andendangering the welfare of a child (two counts), and (2) by permission, from an order ofsaid court, entered July 29, 2014, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, after a hearing.
Defendant was charged with engaging in a series of sexual assaults against thethen-15-year-old victim, including three separate instances in which he was alleged tohave forcibly compelled her to submit to anal sexual intercourse. After a jury trial,defendant was acquitted of two counts arising out of one of the alleged instances of analintercourse and convicted of attempted rape in the first degree, attempted rape in the thirddegree, two counts of criminal sexual act in the first degree, two counts of criminalsexual act in the third degree and two counts of endangering the welfare of a child.Supreme Court sentenced him to an aggregate prison term of 15 years followed by 10years of postrelease supervision. Defendant then retained new counsel and moved tovacate the judgment on the ground that he had been deprived of the effective assistanceof counsel (see CPL 440.10 [1] [h]). After a hearing, at which his former counseltestified, Supreme Court denied defendant's motion, prompting this appeal from both thejudgment of conviction and, by permission, from the denial of his [*2]postconviction motion. We now reverse.
The effectiveness of the assistance of counsel is analyzed in terms of whether "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" (People v Baldi, 54 NY2d 137, 147 [1981]; accord People vBenevento, 91 NY2d 708, 712 [1998]). To prove that he or she did not receivemeaningful representation, a defendant must "demonstrate the absence of strategic orother legitimate explanations for counsel's allegedly deficient conduct" (People v Clermont, 22 NY3d931, 937 [2013] [internal quotation marks and citation omitted]; see People v Wheeler, 124AD3d 1136, 1138-1139 [2015], lv denied 25 NY3d 993 [2015]). Becausethe test for attorney effectiveness is "reasonable competence, not perfect representation"(People v Oathout, 21NY3d 127, 128 [2013] [internal quotation marks and citation omitted]; accord People v Chappelle,126 AD3d 1127, 1129 [2015]), "a reviewing court must avoid confusing trueineffectiveness with mere losing tactics and according undue significance toretrospective analysis" (People v Benevento, 91 NY2d at 712 [internal quotationmarks and citation omitted]; seePeople v Arnold, 85 AD3d 1330, 1333 [2011]). Here, the totality of the recordreveals that, at crucial stages of the representation, counsel inexplicably failed toinvestigate the victim's bleeding disorder, consult with and be prepared to call a medicalexpert on the subject, raise the issue during cross-examination of the People's medicalexpert, and to object to the testimony of defendant's former spouse regarding defendant'ssexual preferences during their marriage. The cumulative effect of these prejudicialfailures deprived defendant of the effective assistance of counsel and his right to a fairtrial.
"[I]t is elementary that the right to effective representation includes the right toassistance by an attorney who has taken the time to review and prepare both the law andthe facts relevant to the defense" (People v Droz, 39 NY2d 457, 462 [1976]; accord People v Oliveras, 21NY3d 339, 346-347 [2013]). Counsel failed defendant in this regard, as heconducted no investigation into the significance of the fact that the victim has VonWillebrand Disease (hereinafter VWD), a bleeding disorder.[FN1] At the CPL 440.10 hearing, counselacknowledged that he had been aware that the report of the sexual assault nurse examiner(hereinafter SANE) noted that the victim had been diagnosed with a bleeding disorder,but that he was unfamiliar with the additional notation of VWD. Despite this, counseladmitted that he did no research on VWD, never consulted a medical expert on thesubject and had no tactical reason for not doing so. Rather, counsel testified that hebelieved the victim's diagnosis to be an insignificant detail because defendant nevermentioned it to him and the SANE report indicated that no signs of physical injury wereobserved.
Counsel's admitted failure to investigate the victim's bleeding disorder meant that hewas unprepared to effectively cross-examine the SANE, with disastrous consequencesfor defendant's case. Aside from attempting to impeach the victim's credibility oncross-examination, which he did with some success, counsel relied heavily upon theabsence of any objective findings of physical injury in the SANE report to support thetheory that the victim had fabricated the allegations against defendant. However, it isclear from counsel's testimony at the [*3]CPL 440.10hearing that he failed to recognize the detrimental effect of the SANE's opiniontestimony, namely, that it is "common" to examine a victim of sexual abuse and observeno signs of physical injury. As a result, this opinion went completely unchallengedduring the trial, and it effectively neutralized the otherwise persuasive force of thereport's findings of no physical injury.
Had counsel sought to inform himself about the victim's VWD diagnosis, he likelywould have become aware of medical experts such as Howard Snyder, a board-certifieddoctor of emergency medicine who submitted an affidavit in support of defendant'spostconviction motion. Snyder averred that "[t]he presence of VWD [in the victim]would have made the presence of bruising or bleeding during forceful, non-consensualanal intercourse more likely than in [a] patient without VWD."[FN2] Undoubtedly, expert testimony similarto Snyder's would have done much to increase the significance of the SANE report's lackof physical findings and would have provided a powerful basis for cross-examination tocounter the damaging effects of the SANE's opinion testimony.
Counsel's failings were magnified by the fact that the People's only direct evidence ofdefendant's guilt was the victim's testimony, making counsel's efforts to undermine hercredibility of paramount importance. Indeed, there were no other witnesses to the allegedsexual assaults and no DNA evidence was recovered. In similar situations, the SecondCircuit, applying New York law, has repeatedly held that "when a defendant is accusedof sexually abusing a child and the evidence is such that the case will turn on acceptingone party's word over the other's, the need for defense counsel to, at a minimum, consultwith an expert to become educated about the vagaries of abuse indicia is critical. Theimportance of consultation and pre-trial investigation is heightened where, as here, thephysical evidence is less than conclusive and open to interpretation" (Eze vSenkowski, 321 F3d 110, 128 [2d Cir 2003] [internal quotation marks and citationsomitted]; accord Gersten v Senkowski, 426 F3d 588, 608-609 [2d Cir 2005],cert denied sub nom. Artus v Gersten, 547 US 1191 [2006]; see Pavel vHollins, 261 F3d 210, 223-225 [2d Cir 2001]; Lindstadt v Keane, 239 F3d191, 201-202 [2d Cir 2001]).[FN3] Thus, the record establishes that,without any justification, counsel prejudiced defendant by "s[itting] on his hands,confident that his client would be acquitted" rather than "consult[ing] [with] and be[ing]prepared to call an expert" (Pavel v Hollins, 261 F3d at 224), whose testimonythen would have been "available . . . [to] assist[ ] the jury in itsdetermination" (People v Castricone, 224 AD2d 1019, 1020 [1996]; accord People v Washington,122 AD3d 1406, 1407 [2014]; compare People v Auleta, 82 AD3d 1417, 1419-1420[2011], lv denied 17 NY3d 813 [2011]).
Counsel's conduct further fell below our standard of meaningful representationbecause he failed to object to, and request a limiting instruction to guide the jury inassessing, the [*4]testimony of defendant's former spouseregarding defendant's sexual preferences. Counsel sat mute while the witness testifiedthat, upon reading the victim's statement to police, it struck her that it contained details"only someone who had been intimate with [defendant] would know," including whatshe then proceeded to describe as defendant's preference for anal intercourse during theirconsensual sexual relationship.[FN4] We do not think that counsel's failureto object to this testimony can be excused on the ground that such an objection had "littleor no chance of success" (People v Caban, 5 NY3d at 152 [internal quotationmarks and citation omitted]). "Not all relevant evidence is admissible as of right. . . Even where technically relevant evidence is admissible, it may still beexcluded by the trial court in the exercise of its discretion if its probative value issubstantially outweighed by the danger that it will unfairly prejudice the other side"(People v Scarola, 71 NY2d 769, 777 [1988] [citations omitted]).
In our view, a legitimate question exists as to whether the prejudicial effect of theformer spouse's testimony regarding defendant's sexual preferences substantiallyoutweighed its probative value, especially considering that she testified that she anddefendant had not been sexually active for several years prior to the alleged assaults onthe victim. Supreme Court should have had the opportunity to consider this question andmake an appropriate ruling in the exercise of its discretion. The court would have doneso, but for counsel's inexplicable failure to object. In the event that the court haddetermined this testimony to be admissible, counsel could then have requested a limitinginstruction, as the lack thereof would "permit[ ] the jurors to perhaps consider [theformer spouse's statements] as proof of defendant's propensity" to engage in the sexualacts charged here (People v Langlois, 265 AD2d 683, 685 [1999]; see Peoplev Greene, 306 AD2d 639, 642-643 [2003], lv denied 100 NY2d 594 [2003];People v Forbes, 203 AD2d 609, 610-611 [1994]). Indeed, the lack of anylimiting instruction clearly impacted the jury's deliberations, as evidenced by the jury'srequest to have the testimony read back regarding defendant's "past sex life."
Finally, we note with disapproval certain remarks made by the prosecutor duringsummation, to which counsel did not object. The prosecutor improperly attempted toappeal to the jury's sympathy by asking the jurors to consider how they would have felt ifthey "were in [the victim's] shoes" (see Wilson v City of New York, 65 AD3d 906, 909 [2009];Dailey v Keith, 306 AD2d 815, 816 [2003], affd 1 NY3d 586 [2004]).The prosecutor also exhorted the jurors to advocate for the victim during deliberations byusing the phrase "you fight for her" (see People v Head, 90 AD3d 1157, 1158 [2011]; People v Nelson, 68 AD3d1252, 1255 [2009]). While counsel's failure to object to these remarks does not, inand of itself, amount to ineffective assistance of counsel, it further illustrates counsel'srepresentation, the cumulative effect of which deprived defendant of meaningfulrepresentation, especially "where, as here, the determination of guilt . . .hinged on sharp issues of credibility" (People v Clarke, 66 AD3d 694, 698 [2009]; see Peoplev Arnold, 85 AD3d at 1334).
In light of our conclusion that a new trial is required, we need not reach defendant'sremaining arguments.
[*5] Lahtinen, J.P.,McCarthy and Clark, JJ., concur. Ordered that the judgment and order are reversed, onthe law, and matter remitted to the Supreme Court for a new trial.
Footnote 1:According to theAmerican College of Obstetricans and Gynecologists, VWD is "the most commoninherited bleeding disorder among American women [and] is a common cause of. . . bleeding problems in women and adolescent girls." Symptoms of VWDinclude, among other things, "bleeding from minor cuts or abrasions."
Footnote 2:We note that the Peoplesubmitted no responsive documentary evidence or information tending to refute suchallegations (see CPL 440.30 [1] [a]).
Footnote 3:In these cases,ineffective assistance of counsel was found utilizing the federal standard (seeStrickland v Washington, 466 US 668, 687 [1984]). However, inasmuch as "ourstate standard . . . offers greater protection than the federal test" (People v Caban, 5 NY3d143, 156 [2005]; see People v Clermont, 22 NY3d at 937), representationthat falls below the federal standard will generally also be found to fall below our statestandard.
Footnote 4:Contrary to defendant'sargument, this was not inadmissible Molineux evidence, inasmuch as analintercourse between consenting adults has been held to be neither criminal conduct norinimical to public morality (see Lawrence v Texas, 539 US 558, 578-579 [2003];People v Onofre, 51 NY2d 476, 492 [1980], cert denied 451 US 987[1981]; see also People vBrewer, 129 AD3d 1619, 1620 [2015]).