| People v Stefanovich |
| 2016 NY Slip Op 01070 [136 AD3d 1375] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJoseph A. Stefanovich, Appellant. |
Bruce R. Bryan, Syracuse, for defendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (James M. Metcalf, A.J.),rendered February 21, 2014. The judgment convicted defendant, upon a jury verdict, ofrape in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: On appeal from a judgment convicting him following a jury trial ofrape in the first degree (Penal Law § 130.35 [1]), defendant contends thathe was deprived of effective assistance of counsel at trial. According to defendant, hisattorney was ineffective because he allowed the jury to learn that he was a registered sexoffender who had previously been convicted of a felony sexual offense. We agree withthat contention and grant defendant a new trial.
On the evening of July 30, 2005, the victim reported to the police in the Village ofPhoenix that a young man whom she did not know dragged her into the woods and rapedher. She had injuries consistent with a violent assault, and semen from the victim'svagina was recovered at the hospital by use of a rape kit. In 2010, approximately fiveyears after the attack, the police learned that the DNA from the semen matcheddefendant's DNA profile, which was in the Combined DNA Index System (CODIS)because he was a convicted felon. When a police investigator interviewed defendant twoyears later, in December 2012, defendant said that he did not know or recognize thevictim and never had sexual intercourse with her. Defendant agreed to give an oral swab,providing the police with his DNA, and subsequent testing conclusively established thatdefendant's DNA matched that from the semen preserved in the rape kit. Defendant wasarrested on January 31, 2013 and charged with rape in the first degree.
At the outset of the jury trial, and before commencement of voir dire, defensecounsel informed County Court that defendant would be testifying at trial. During theensuing Sandoval hearing, the prosecutor stated that he wished to cross-examinedefendant with respect to three criminal convictions: a 2008 misdemeanor conviction, fordriving while intoxicated, a 2005 felony conviction, for sexual abuse in the first degree,and a 1994 felony conviction, for driving while intoxicated. With respect to the sexualabuse conviction, the prosecutor, acknowledging that "the nature of that offense" is "sosimilar to the present charge," requested a Sandoval compromise pursuant towhich he would be allowed to ask defendant "if he was convicted of a felony offense butnot specify the title of that offense or the underlying facts." The court agreed to thatrequest, noting that the probative value of allowing the jury to know of defendant's priorsex offense "would not outweigh [its] prejudicial effect." With respect to the drivingwhile intoxicated convictions, the court ruled that defendant could be impeached with themisdemeanor but not the felony, which the court deemed too remote.
The prosecutor then advised the court of a potential problem arising from the audiorecording of the police investigator's interview with defendant, i.e., that during theinterview [*2]repeated mention was made of defendant'sstatus as a registered sex offender. Although the references to defendant being a sexoffender could easily have been edited out of the recording, defense counsel stated thathe did not object to the recording being played in its entirety for the jury inasmuch as thePeople would "probably introduce" documents pertaining to the testing of defendant'sDNA that refer to his status as a sex offender. Defense counsel evidently concluded thatthe jury would learn that defendant was a registered sex offender even if an editedrecording were played to the jury.
During voir dire, defense counsel twice informed the prospective jurors thatdefendant had previously committed a sexual offense, asking whether that would affectanyone's ability to be impartial. One prospective juror answered "Yeah," explaining that,given defendant's prior sexual conviction, he probably could not entertain the concept ofdefendant being not guilty of the sexual crime charged in this case. Defense counselrevealed his trial strategy during his opening statement, which was to argue that thepolice locked in on defendant as a suspect merely because he is a registered sex offender."Ladies and gentlemen," defense counsel added, "my client, even though he is aregistered sex offender, is presumed innocent."
At trial, the investigator who interviewed defendant testified for the People, and therecording of that interview was played for the jury, including the parts that refer todefendant being a registered sex offender. The investigator testified that he developeddefendant as a suspect because defendant's DNA profile in CODIS matched the DNAprofile of the rapist. During cross-examination of the investigator, defense counsel madereference once again to defendant being a registered sex offender. Defendant later tookthe stand in his own defense, acknowledging on direct examination that he pleaded guiltyto a felony sexual offense in 2005, which required him to register as a sex offender.Defendant then testified that he met the victim on the day in question and had consensualsexual intercourse with her in the woods.
During his summation, defense counsel conceded that the victim had been raped inthe woods, but maintained that defendant merely had consensual intercourse with herearlier that same day in those same woods. Defense counsel then made one last referenceto defendant's status as a registered sex offender: "The state thought that this was goingto be easy. My client is a registered sex offender. He's not here - - he's not here to bejudged on his morality." The jury returned a guilty verdict.
It is well settled that "mere disagreement with trial strategy is insufficient to establishthat defense counsel was ineffective" (People v Henry, 74 AD3d 1860, 1862 [2010], lv denied15 NY3d 852 [2010]). At the same time, however, an attorney should not be deemedeffective simply because he or she followed a strategy. Rather, there must be someexamination of the reasonableness of the strategy. The Court of Appeals made that pointclear when it wrote: "As long as the defense reflects a reasonable and legitimatestrategy under the circumstances and evidence presented, even if unsuccessful, it willnot fall to the level of ineffective assistance . . . a claim of ineffectiveassistance of counsel will be sustained only when it is shown that counsel partook 'aninexplicably prejudicial course' " (People v Benevento, 91 NY2d708, 712-713 [1998], quoting People v Zaborski, 59 NY2d 863, 865 [1983][emphasis added]).
Here, we conclude that defense counsel's strategy, i.e., to allow the jury to know thatdefendant was a registered sex offender and then argue that the police focused theirinvestigation on defendant because he was a registered sex offender, was based on anobviously false premise. The police focused their investigation on defendant because hisDNA profile matched that of the rapist, not because he was a registered sex offender.Moreover, defendant's DNA profile was in CODIS because he was a convicted felon, notbecause he had committed a sexual offense. This is not to say that defense counselpursued an unreasonable defense theory at trial. The theory was that defendanthad consensual intercourse with the victim on the same day that she was raped bysomeone else. In pursuing that theory, however, it was unnecessary for defense counselto inform the jury that defendant was a registered sex offender. In fact, any chance thatthe jurors would have believed defendant's testimony about the intercourse beingconsensual was likely extinguished once they learned that he had previously committed asex offense. In short, defendant derived no discernible benefit from the jury knowing thathe was a registered sex offender, and was highly prejudiced thereby.
It must be emphasized that defendant received a favorable Sandoval rulingpursuant to [*3]which he could have testified at trialwithout being asked about the prior conviction of a sexual offense. The prosecutor waspermitted to ask merely whether he was convicted of a felony. Also, as previously noted,the references to defendant's status as a registered sex offender on the audio recording ofthe police investigator's interview with defendant could easily have been redacted. Therelevant parts of the interview related to defendant's assertions that he did not know thevictim and did not have sexual intercourse with her. Indeed, the court was open to theidea of redacting the prejudicial portions of the recording until defense counsel statedthat he did not object to the recording being played in its entirety. Similarly, anyreferences to defendant as a sex offender on the DNA documents could have beenredacted. In any event, no such documents were offered by the People at trial orotherwise admitted in evidence.
In sum, we conclude that defense counsel "partook 'an inexplicably prejudicialcourse' " of action by allowing the jury to know that defendant is a registered sexoffender (id.). Although the proof of guilt may have been overwhelming, defensecounsel's error was so "egregious and prejudicial as to compromise . . .defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]; see generallyPeople v Crimmins, 36 NY2d 230, 237-238 [1975]).
Defendant's further contention that the evidence is legally insufficient to establish hisguilt is unpreserved for our review (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]) and, in any event, it lacks merit. Viewing theevidence in the light most favorable to the People, as we must (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that there is a valid line ofreasoning and permissible inferences that could lead a rational person to the conclusionreached by the jury based on the evidence at trial, i.e., that defendant had sexualintercourse with the victim by forcible compulsion (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of the elementsof the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wefurther conclude that the verdict is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495). Even assuming, arguendo, that a differentverdict would not have been unreasonable, we cannot conclude that the jury failed togive the evidence the weight it should be accorded (see id.).
We have reviewed defendant's remaining contentions, and conclude that noneconstitutes a further ground for reversal. Present—Smith, J.P., Carni, Lindley andDeJoseph, JJ.