| People v Fiorino |
| 2015 NY Slip Op 06382 [130 AD3d 1376] |
| July 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJames Fiorino, Appellant. |
Terence L. Kindlon, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered July 2, 2014, upon a verdict convicting defendant of the crime of assault inthe second degree.
During the early morning hours of June 27, 2013, the victim was attacked androbbed as she was walking home from a party on South Pearl Street in the City ofAlbany. After the victim, who was choked during the attack, regained consciousness, shetook a taxi home and, later that morning, reported the incident to the Albany PoliceDepartment. The police successfully tracked the victim's cell phone, which was stolenduring the robbery, and arrested a suspect, whom the victim later identified as herattacker.
While the victim was at the police station completing a report of the incident, shereceived a telephone call from defendant, her father. According to a patrol officer whowitnessed this conversation, defendant sounded "very upset" and could be heard"yelling" at the victim. The victim explained that her phone had been stolen and that shewas at the police station, in response to which defendant said, "[W]ell, you know what'sgoing to happen when you get home."
Thereafter, on July 2, 2013, the victim appeared in Albany City Court for apreliminary hearing on the underlying robbery, at which time the Assistant DistrictAttorney prosecuting that matter noted that the victim had, among other things, two blackeyes. William VanAmburgh, a detective with the Albany Police Department, advised theAssistant District Attorney that the victim did not display such injuries at the time thatshe reported the robbery; upon further inquiry, the victim informed VanAmburgh that,following her return from the police station on [*2]theafternoon of June 27, 2013, she and defendant engaged in a physical altercation, duringthe course of which defendant repeatedly punched and kicked her, in addition to strikingher with a wooden walking cane. Photographs of the victim taken following thisaltercation revealed two badly blackened eyes, as well as multiple bruises and abrasionsto the victim's face, arms, shoulders, legs and back.
VanAmburgh telephoned defendant and advised that he wished to speak withdefendant "about a fight he had with [the victim]." Defendant agreed to come down tothe police station and, once there, VanAmburgh advised defendant of hisMiranda rights. Defendant thereafter gave a written statement wherein heexpressed his belief that the victim was "doing things that [he] didn't know about, havingunknown friends, having sex, having a boyfriend etc." and indicated how, on theafternoon in question, he confronted the victim and asked her to "lay it all out for [him]."The victim indicated that "there was nothing" to tell, but defendant did not believeher—apparently because a fortune teller had told him that the victim "was having alot of sex and also taking a lot of pills." Having previously found condoms in the victim'spurse, defendant took this as "confirmation that the fortune teller was telling [him] thetruth," and he started "to get upset." As the verbal altercation between defendant and thevictim intensified, the victim attempted to leave the residence, at which point defendant"grabbed her right arm and pulled her back into the house and told her that she was notgoing anywhere." At this point, "punches started to go back and forth," and defendantadmitted that he "threw [the victim] to the ground and grabbed a stick and hit her a littlebit." Defendant also acknowledged that he "kicked [the victim] a little when she was onthe ground"; once he noticed bruises developing on the victim's face, defendant"snap[ped] out of [his] anger spell" and allowed the victim to leave.
Defendant thereafter was indicted and charged with one count of assault in thesecond degree. Following an unsuccessful motion to suppress defendant's writtenstatement, the matter proceeded to trial, where both the victim and defendant appearedand testified. Although defendant attempted to minimize his conduct, claiming that henever struck the victim with a closed fist, insisting that she only sustained "little blows"and asserting that he merely "tapped her" with the cane, defendant nonetheless admittedto engaging in a physical altercation with the victim, and both his written statement and aredacted video recording of his oral statement were admitted into evidence. The juryconvicted defendant as charged, and County Court subsequently sentenced defendant tothree years in prison followed by three years of postrelease supervision. This appeal bydefendant ensued.
Defendant initially contends that County Court erred in failing to suppress his oraland written statements. We disagree. As a starting point, we find no merit to defendant'sclaim that he invoked his right to counsel. In this regard, VanAmburgh testified at thesuppression hearing that, when he first spoke with defendant on the phone about comingdown to the police station, defendant "asked if he should bring an attorney with him";VanAmburgh told defendant that "[it] was up to him, that it was his decision." Oncross-examination, VanAmburgh was asked whether the issue of counsel came up duringthe course of his interview with defendant; in response, VanAmburgh testified that, afterdefendant executed his written statement and was placed under arrest, defendant saidsomething to the effect of "I . . . asked you if I should bring an attorney withme," whereupon VanAmburgh reminded defendant, "I said, that's up to you. That's yourdecision."
To be sure, "[o]nce an uncharged individual requests counsel while in policecustody, his or her constitutional rights cannot thereafter be waived without counselpresent" (People v Strong,27 AD3d 1010, 1012 [2006], lv denied 7 NY3d 763 [2006]; see People v Cade, 110 AD3d1238, 1240 [2013], lv denied 22 NY3d 1155 [2014]; People v Engelhardt, 94 AD3d1238, [*3]1239-1240 [2012], lv denied 19NY3d 960 [2012]). Whether a defendant is in custody presents "a mixed question of lawand fact, which is dependent on the circumstances existing when the challengedstatements were made" (Peoplev Henry, 114 AD3d 1025, 1026 [2014], lv dismissed 22 NY3d 1199[2014] [citation omitted]). Additionally, in order for a defendant to invoke his or herright to counsel, there must be an "unequivocal assertion" of that right (People vEngelhardt, 94 AD3d at 1241; see People v Glover, 87 NY2d 838, 839[1995]; People v Higgins,124 AD3d 929, 931 [2015]; People v Phoenix, 115 AD3d 1058, 1059 [2014], lvdenied 23 NY3d 1024 [2014]).
Here, defendant plainly was not in custody at the point in time when he initiallyspoke with VanAmburgh on the phone (prior to actually coming to the police station)and, even assuming—without deciding—that defendant indeed was incustody upon his arrival at the police station, the record fails to reflect that defendantthereafter unequivocally asserted his right to counsel. Merely inquiring as to whether heshould bring (or should have brought) an attorney with him to the police station did not,under the particular facts of this case, constitute an unequivocal assertion of defendant'sright to counsel (see People vBarski, 66 AD3d 1381, 1382 [2009], lv denied 13 NY3d 905 [2009]; compare People v Jemmott,116 AD3d 1244, 1246-1247 [2014]), and defendant points to no other statementmade by him that could reasonably be interpreted as an unequivocal assertion of hisrights in this regard. Accordingly, inasmuch as defendant's statements were not obtainedin violation of his right to counsel, County Court properly denied defendant's motion tosuppress upon this ground.
Defendant's related claim—that his oral and written statements should besuppressed because he did not voluntarily waive his Miranda rights—isequally unavailing. Defendant was orally advised of his Miranda rights prior toany questioning; defendant nodded his head affirmatively throughout VanAmburgh'srecitation of those rights, answered "Yes" when asked if he understood his rights andthereafter willingly discussed and answered questions regarding the altercation with thevictim, thereby "impliedly waiv[ing] his rights" (People v Dobbins, 123 AD3d 1140, 1140 [2014], lvdenied 25 NY3d 1071 [2015]; see People v Sirno, 76 NY2d 967, 968 [1990];People v Jaeger, 96 AD3d1172, 1173 [2012], lv denied 19 NY3d 997 [2012]; People v Coleman, 57 AD3d1519, 1519 [2008], lv denied 12 NY3d 782 [2009]). After defendant'sstatement was reduced to writing, defendant was provided with written Mirandawarnings, which he reviewed and initialed prior to reading aloud, correcting and signinghis written statement. Under these circumstances, and upon reviewing the video-recordedinterview of defendant, we are satisfied that defendant understood and voluntarilywaived his Miranda rights (see People v Desmond, 118 AD3d 1131, 1134 n 1 [2014],lv denied 24 NY3d 1002 [2014]). Therefore, defendant's motion to suppress hisoral and written statements upon this ground was properly denied.
Defendant next contends that he was deprived of a fair trial by virtue of prosecutorialmisconduct—specifically, that during the course of the People's summation, theprosecutor misstated the evidence, impermissibly vouched for the victim's credibility anddisparaged defendant. The record reflects, however, that defendant's arguments regardingthe challenged statements "are unpreserved for our review, as no objections were raisedbefore County Court" (People vHead, 90 AD3d 1157, 1158 [2011]; see People v Richards, 124 AD3d 1146, 1147 [2015], lvdenied 25 NY3d 992 [2015]). Further, "the record as a whole fails to disclose thatthe prosecutor engaged in a flagrant and pervasive pattern of prosecutorial misconduct soas to deprive defendant of a fair trial" (People v Green, 119 AD3d 23, 30 [2014], lv denied23 NY3d 1062 [2014] [internal quotation marks, brackets and citations omitted]; see People v Morrison, 127AD3d 1341, 1343-1344 [2015]; People v Fomby, 101 AD3d 1355, 1357 [2012]). [*4]Accordingly, reversal of defendant's conviction upon thisground is not warranted.[FN*]
Finally, we find no merit to defendant's claim that he was denied the effectiveassistance of counsel. Defendant's argument on this point is two fold: first, that defensecounsel elicited damaging testimony from the victim regarding prior physical altercationswith defendant and, further, that defense counsel essentially conceded defendant's guiltduring the course of his summation. The case law makes clear that "[t]he constitutionalright to the effective assistance of counsel does not mean that the representation waserror free in every respect, but simply that defendant was afforded a fair trial" (People v Fulwood, 86 AD3d809, 811 [2011], lv denied 17 NY3d 952 [2011] [internal quotation marksand citations omitted]; accord People v Cade, 110 AD3d at 1241; People v Bjork, 105 AD3d1258, 1263 [2013], lv denied 21 NY3d 1040 [2013], cert denied 571US &mdash, 134 S Ct 1306 [2014]). As a result, "isolated errors in counsel'srepresentation generally will not rise to the level of ineffectiveness, unless the error is soserious that defendant did not receive a fair trial" (People v Shuaib, 111 AD3d 1055, 1057 [2013], lvdenied 24 NY3d 1046 [2014] [internal quotation marks, brackets and citationsomitted]; see People vBrabham, 126 AD3d 1040, 1043 [2015], lv denied 25 NY3d1160, 1171 [June 15, 2015]). "So long as the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation, theconstitutional requirement will have been met" (People v Robinson, 123 AD3d 1224, 1227-1228 [2014],lv denied 25 NY3d 992 [2015] [internal quotation marks and citations omitted]).Notably, "[w]hen reviewing a claim of ineffective assistance of counsel, courts mustavoid confusing actual ineffectiveness with mere losing tactics, and a defendant mustdemonstrate the absence of strategic or reasonable explanations for counsel's allegedshortcomings" (People vGriffin, 122 AD3d 1068, 1070 [2014], lv denied 25 NY3d1164 [June 9, 2015] [internal quotation marks and citation omitted]).
Here, the record reflects that defense counsel engaged in relevant motion practice,articulated appropriate and effective evidentiary objections, thoroughly cross-examinedthe People's witnesses, advanced a cohesive and cogent defense and otherwise vigorouslyrepresented defendant's interests. As to the cited errors, the crux of the defense strategywas that defendant was the concerned father of a deceitful young adult, who, in his view,was engaged in questionable activities; thus, the argument continues, when confrontedwith the victim's most recent act of dishonesty, defendant experienced an uncharacteristicloss of temper and engaged in an unprecedented physical altercation that he deeplyregretted. To that end, defense counsel asked the victim on cross-examination whether,before the underlying incident, defendant had ever struck her, to which the victimreplied, "Yes." Additional questioning ensued, during the course of which the victimtestified that defendant hit her "like three to four times a month."
Although defendant now ascribes error to this line of questioning, he has failed todemonstrate the absence of a strategic or tactical explanation for counsel's actions.Notably, the victim's credibility was a central issue at the trial and, during the course ofthe People's case-in-chief, the nurse who treated the victim in a local emergency roomfollowing the assault testified [*5]that the victimdisavowed any history of domestic abuse, denied that anyone was hitting or hurting herand expressed no concerns about her safety at home. Hence, by posing the challengedquestion and eliciting an affirmative response from the victim, defense counsel castdoubt upon the victim's credibility by highlighting the inconsistencies between hertestimony at trial and her prior statements to medical personnel. Likewise, had defensecounsel succeeded in obtaining a negative response to the question, such testimonywould have been entirely consistent with defendant's position that the underlyingaltercation was an aberrational event.
We reach a similar conclusion regarding defense counsel's summation, wherein hestated, "And contrary to what [the victim] might have you believe, [defendant] neverbrutalized her up until this single once-in-forever event." As a starting point, counsel'sstatement has to be viewed in context of the summation as a whole, during the course ofwhich counsel repeatedly pointed to alleged inconsistencies in the victim's testimony inan effort to portray her as a dishonest, disrespectful and ungrateful young womanwho—on this one occasion—had pushed her father to his absolute limit.More to the point, counsel's comment must be gauged against the proof actually adducedat trial. In this regard, although defendant indeed attempted to minimize the force withwhich he struck the victim and suggested that some of her facial injuries may have beensustained when the victim tripped and fell upon leaving the residence following thealtercation, he never denied that he "smack[ed] [the victim's] face," "kicked her a coupletimes in the legs" and "tapped her" with the wooden cane. Additionally, both defendant'swritten statement and the video-recorded interview of defendant, wherein he readilyadmitted that he engaged in a physical altercation with the victim, were admitted intoevidence. In short, while defendant endeavored to downplay the severity of thealtercation, insisted that he did not intend to hurt the victim and expressed regret for hisbehavior, he never denied that the altercation actually occurred, and counsel's statement,although perhaps inartfully expressed, supported the overall defensestrategy—namely, that this was an isolated incident that was entirely inconsistentwith defendant's character and demeanor and for which he was truly sorry. Under thesecircumstances, counsel's comment—even if erroneous—was not sufficientlyegregious to deprive defendant of a fair trial (particularly given that counsel contested theintent element of the underlying crime), and we are satisfied that, overall, defendantreceived meaningful representation. Defendant's remaining assertions, to the extent notspecifically addressed, have been examined and found to be lacking in merit.
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:That said, wenonetheless address a comment made at oral argument of this matter, wherein counsel forthe People defended one of the challenged statements—made during the course ofthe People's summation—by characterizing the statement as "effective." Nocomment made by a prosecutor during summation—if otherwiseimproper—could ever be excused under the guise of its effectiveness incontributing to a conviction.