| People v Barber |
| 2015 NY Slip Op 08745 [133 AD3d 868] |
| November 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mark Barber, Appellant. |
Mark Diamond, New York, N.Y., for appellant, and appellant pro se.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley andJudith R. Sternberg of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (St.George, J.), rendered October 24, 2012, convicting him of criminal sexual act in the thirddegree, receiving a reward for official misconduct in the second degree (two counts),official misconduct (18 counts), sexual abuse in the second degree (seven counts), andforcible touching (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant, a former correction officer at the Nassau County Correctional Centerwho allegedly engaged in inappropriate conduct with several female inmates over atwo-year period, contends that certain counts in the indictment were multiplicitous. Anindictment is multiplicitous "when a single offense is charged in more than one count"(People v Alonzo, 16 NY3d267, 269 [2011]; see Peoplev Campbell, 120 AD3d 827 [2014]; People v Smalls, 81 AD3d 860 [2011]; People vAarons, 296 AD2d 508 [2002]; People v Senisi, 196 AD2d 376, 382 [1994]).The defendant's contention is without merit, as each count requires proof of an additionalfact that the other does not (seePeople v Henry, 119 AD3d 607, 609 [2014]; People v Jackson, 264AD2d 857 [1999]; People v Kindlon, 217 AD2d 793 [1995]), and "a convictionon one count would not be inconsistent with acquittal on the other" (People vSaunders, 290 AD2d 461, 463 [2002]; see People v Henry, 119 AD3d at609). Moreover, the counts allege violations of different provisions of the Penal Law,necessitating independent findings (see People v Kindlon, 217 AD2d at 795).The defendant's related challenge to the Supreme Court's jury instruction is unpreservedfor appellate review, as the defendant never objected to the charge as given (see People v Nash, 77 AD3d687 [2010]). In any event, contrary to the defendant's contention, the charge to thejury, when considered in its entirety, was adequate.
The defendant contends that the evidence was legally and factually insufficientbecause it was based on testimony of the People's witnesses that was incredible. Thedefendant's contention that the evidence was legally insufficient is unpreserved forappellate review, as the defendant's motion to dismiss was based on a different argument(see People v Hewitt, 82AD3d 1119 [2011]; Peoplev Carlucci, 80 AD3d 621 [2011]; People v Crawford, 38 AD3d 680 [2007]; People vBartello, 243 AD2d 483 [1997]). In any event, the defendant's contention regardingthe legal sufficiency of the evidence is without merit. With regard to the weight of theevidence, we find that, contrary to the defendant's [*2]contention, the testimony of the People's witnesses was notincredible or unworthy of belief. The fact that the witnesses have a criminal record and ahistory of drug use did not render their testimony incredible (see People v Marcus, 112AD3d 652 [2013]). The witnesses' criminal background and drug use, as well astheir involvement in a related civil lawsuit against Nassau County, were placed beforethe jury, and it was reasonable for the jury to resolve the issue of their credibility in favorof the prosecution (see People vMazyck, 118 AD3d 728, 729 [2014]; People v Faulkner, 220 AD2d 525[1995]).
The defendant only partially preserved for appellate review his contention that theevidence was legally insufficient to establish his guilt of the counts charging him withofficial misconduct and receiving a reward for official misconduct made on the groundthat the accomplice testimony adduced at trial was insufficiently corroborated byindependent evidence as required by CPL 60.22 (1) (see People v Costello, 128 AD3d 848 [2015]; People v Demolaire, 55 AD3d621 [2008]; CPL 470.05 [2]). In any event, the defendant's contention is withoutmerit (see People v Breland, 83 NY2d 286, 293 [1994]; People v Loucks, 125 AD3d890 [2015]; People v Johnson, 188 AD2d 552 [1992]). Moreover, upon theexercise of our factual review power, we are satisfied that the verdict of guilt as to thesecounts was not against the weight of the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d633 [2006]). Furthermore, since there is no merit to the defendant's contention,defense counsel's failure to request a charge in accordance with CPL 60.22 did notconstitute ineffective assistance of counsel (see People v Higgins, 123 AD3d 1143 [2014]; People v Leffler, 13 AD3d164 [2004]).
Contrary to the defendant's contention, the Supreme Court properly admittedrecordings of certain telephone conversations between one of the complainants and herparents under the prompt outcry exception to the hearsay rule (see People vMcDaniel, 81 NY2d 10, 17 [1993]; People v Shepherd, 83 AD3d 1298 [2011]; People v Aller, 33 AD3d621 [2006]; People v Wooley, 249 AD2d 46 [1998]).
The defendant's request for a missing witness charge as to two correction officers,made after the People rested, was untimely (see People v Woods, 275 AD2d 332[2000]). Further, the Supreme Court properly declined the defendant's request for amissing witness charge as to those potential witnesses and others, since he failed toestablish, prima facie, that the uncalled witnesses had knowledge of a material issue andthat such witnesses would be expected to testify favorably to the People (see People vWhite, 228 AD2d 209 [1996]; People v Torres, 146 AD2d 658 [1989]). Inany event, defense counsel was permitted to comment during summation on the People'sfailure to call the witnesses (see People v Hinton, 217 AD2d 708 [1995]).
Contrary to the defendant's contention, he was not deprived of a fair trial as a resultof the Supreme Court's handling of a jury note requesting that juror number six bepermitted to keep an appointment to have her tooth extracted. CPL 310.30 does notapply, as the contents of the note were wholly unrelated to the substantive legal or factualissues of the trial, and thus the court's response did not involve the giving of informationor instruction within the meaning of CPL 310.30 (see People v Terry, 122 AD3d 882 [2014]; People v Gerrara, 88 AD3d811 [2011]). In addition, the record does not support the defendant's contention thatthe jury was forced to reach a verdict because of the court's handling of the jury note.The jurors were each polled as to the verdict, and all of them agreed with it (see People v Hall, 105 AD3d658 [2013]). The defendant's contention that he was deprived of a fair trial due tothe court's failure to make a reasonably thorough inquiry of juror number six todetermine whether she was able to continue serving or should be discharged (seeCPL 270.35) is unpreserved for appellate review (see CPL 470.05), as thedefendant's trial counsel never made such a request nor moved for a mistrial (see People v Morales, 36AD3d 631 [2007]). In any event, at the time the note was submitted, juror numbersix was not unavailable for continued service (see People v Echevarria, 30 AD3d 537 [2006]).
The defendant's contention that he was deprived of a fair trial based on theprosecutor's conduct on summation is unpreserved for appellate review, as thedefendant's trial counsel either failed to raise any objection, voiced only a generalobjection without specifying the ground therefor, or failed to seek curative instructions ora mistrial when an objection was sustained (see People v Rahman, 119 AD3d 820 [2014]; People v Dunham, 78 AD3d1073 [2010]; People vCrawford, 54 AD3d 961 [2008]). In any event, most of the prosecutor's remarkswere within the broad bounds of rhetorical comment permissible in closing arguments,and constituted fair response to arguments [*3]made bydefense counsel in summation or fair comment on the evidence (see People vHalm, 81 NY2d 819, 821 [1993]; People v Galloway, 54 NY2d 396, 401[1981]). To the extent that some of the prosecutor's comments were improper, any errorwas not so egregious as to have deprived the defendant of a fair trial (see People v Portes, 125 AD3d794, 794 [2015]; People vStevens, 114 AD3d 969, 970 [2014]; People v Tiro, 100 AD3d 663, 663 [2012]).
Prior to trial, the People made an application to withdraw those counts in theindictment that related to one potential complainant, which the Supreme Court granted.The People now concede that the court erred in reasoning that "the District Attorney'soffice has the absolute right to proceed with whatever charges they would like" and that,only after opening statements, "the Court has to approve a dismissal of charges in anindictment" (see People vExtale, 18 NY3d 690 [2012]). The defendant contends that the withdrawal ofthose counts "threw off his case" and his "planned defense," which involved an allegedconspiracy between the subject complainant and those remaining in the case. However,under the circumstances of this case, the court's error was harmless in view of theoverwhelming evidence of the defendant's guilt and the absence of any significantprobability that the error affected the verdict (see id. at 696; People v Silvestre, 118 AD3d567 [2014]; People vUrbina, 99 AD3d 821, 822 [2012]). Notably, defense counsel declined thecourt's invitation to call the potential complainant as a witness and, even in her absence,counsel was able to elicit testimony regarding the defense theory that the complainantshad conspired against the defendant.
The defendant's further contention, raised in his pro se supplemental brief, that hewas deprived of the effective assistance of counsel is based, in part, on matter appearingon the record and, in part, on matter outside the record and, thus, constitutes a" 'mixed claim[ ]' " of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011]). In thiscase, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d824, 825 [1981]). Since the defendant's claim of ineffective assistance cannot be resolvedwithout reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Maxwell,89 AD3d at 1109).
The defendant's contentions in his pro se supplemental brief relating to an allegedRosario violation (see People v Rosario, 9 NY2d 286 [1961]) are alsobased, in part, on matter dehors the record (see People v Adamson, 131 AD3d 701, 703 [2015]). To theextent that these contentions are reviewable on direct appeal, they are without merit(see People v Rajigah, 265 AD2d 580 [1999]). Mastro, J.P., Dickerson, Millerand Maltese, JJ., concur.