| People v Stahl |
| 2016 NY Slip Op 05597 [141 AD3d 962] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDaniel D. Stahl, Appellant. |
D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel), for appellant.
G. Scott Walling, Special Prosecutor, Schenectady, for respondent.
McCarthy, J.P. Appeals (1) from a judgment of the County Court of Essex County(Meyer, J.), rendered May 17, 2012, convicting defendant following a nonjury trial of thecrimes of rape in the first degree and sexual abuse in the first degree, and (2) bypermission, from an order of said court, entered December 8, 2014, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In June 2011, defendant was charged in a seven-count indictment with, among otherthings, rape in the first degree and sexual abuse in the first degree. The charges stemfrom the allegation that, among other things, defendant drugged the victim with Xanax,without her knowledge, before proceeding to engage in sexual acts with her while shewas physically helpless. After a nonjury trial, County Court found defendant guilty ofrape in the first degree and sexual abuse in the first degree, acquitted him of theremaining charges and thereafter sentenced him to an aggregate prison term of 12 yearsto be followed by 10 years of postrelease supervision and ordered him to pay restitutionand a fine. Defendant subsequently moved pursuant to CPLR article 440 to vacate thejudgment of conviction, claiming, among other things, that he was denied the effectiveassistance of counsel due to a failure to seek the Trial Judge's recusal and a failure toexplain to defendant the details of a personal relationship that one of defendant's counselhad with that Judge. County Court denied the motion without a hearing. Defendantappeals from the judgment and, by permission, from the subsequent order.
County Court properly denied defendant's motion to dismiss the indictment. On June[*2]20, 2011, the People served defendant with noticethat they were presenting their case to the grand jury on June 29, 2011 and specificallyadvised defendant to notify them in writing if he intended to testify before the grand jury.Defendant did not notify the People in writing of his intention to testify at the June 2011presentment and, therefore, defendant's rights were not violated when the indictment wasobtained without his testimony (see People v Medeiros, 116 AD3d 1096, 1097 [2014],lv denied 24 NY3d 1045 [2014]; People v Tole, 94 AD3d 1334, 1334-1335 [2012], lvdenied 19 NY3d 968 [2012]; People v Caban, 89 AD3d 1321, 1322 [2011]).
Defendant's arguments that the verdict was based on legally insufficient evidenceand that it was against the weight of the evidence because the victim was not physicallyhelpless and defendant did not have sexual intercourse with her are both without merit.Considering the evidence, including the victim's testimony regarding her alcoholconsumption and limited ability to remember the night in question, the expert testimonyregarding Benzodiazepine[FN1] found in the victim's urine and theexpert testimony linking defendant through DNA analysis to sperm found on the tamponthat the victim was wearing and to sperm found on an anal swab from the victim, weconclude that the evidence was legally sufficient (see People v Kessler, 122 AD3d 1402, 1403 [2014], lvdenied 25 NY3d 990 [2015]) and supported by the weight of the credible evidence(see People v Yontz, 116AD3d 1242, 1243 [2014], lv denied 23 NY3d 1026 [2014]; People v Bjork, 105 AD3d1258, 1260-1261 [2013], lv denied 21 NY3d 1040 [2013], certdenied 571 US &mdash, 134 S Ct 1306 [2014]).
Next, as the People concede, law enforcement lacked the necessary grounds to seizedefendant when an officer stopped him while he was driving in order to inform him thatlaw enforcement wished to speak to him. Nonetheless, that violation did not require thesuppression of a subsequent statement that defendant made to law enforcement. Theattenuation doctrine, which addresses whether evidence obtained subsequent to such anillegal seizure must be suppressed, "requires a court to consider the temporal proximityof the [seizure] and the confession, the presence of intervening circumstances and,particularly, the purpose and flagrancy of the official misconduct" (People v Bradford, 15 NY3d329, 333 [2010] [internal quotation marks and citation omitted]). Here, after thebrief roadside seizure ended, defendant voluntarily drove himself to a police station andagreed to speak to a law enforcement officer there. Before defendant gave a statement, hereceived Miranda warnings. In light of these facts, defendant's statement wasattenuated from the illegal police conduct and, thus, was not subject to suppression(see People v Bradford, 15 NY3d at 333-335; People v Buchanan, 136 AD3d 1293, 1294 [2016]).
In addition, County Court did not err in allowing the People to elicit bad act evidencein the form of testimony from other people regarding defendant's offer of Xanax to them.The testimony was directly relevant to the issue of whether defendant possessed acontrolled substance, which was an element of each of the charges against defendant offacilitating a sex offense with a controlled substance (see Penal Law§ 130.90; seegenerally People v Fuller, 50 AD3d 1171, 1176 [2008], lv denied 11NY3d 788 [2008]). Further, we find no abuse of discretion in County Court'sdetermination that the probative value of the aforementioned evidence outweighed anyimproper prejudicial effect (seePeople v Dorm, 12 NY3d 16, 19 [2009]).
Next, defendant's constitutional right to confront witnesses was not violated(see US [*3]Const 6th Amend). Defendantcontends that County Court erred in admitting into evidence the reports prepared byLaurie Pasqualino, the forensic scientist who analyzed the DNA data and linkeddefendant's DNA to the samples from the rape kit, over defendant's objection that sherelied upon data compiled by lab technicians in the same lab who did not testify at trial.We disagree. Pasqualino testified that she analyzed raw data compiled by thenontestifying lab technicians and that she did not rely on the opinions or interpretation ofanyone else in forming her scientific conclusions linking defendant's DNA profile to thevictim's rape kit, which conclusions were contained in the reports that she authored (see People v Brown, 13 NY3d332, 336-337, 339-340 [2009]; see also People v John, 27 NY3d 294, 301-302 [2016]).Pasqualino testified and was subject to cross-examination, satisfying the requirement that"analysts who write reports that the prosecution introduces [into evidence at trial] mustbe made available for confrontation" (Bullcoming v New Mexico, 564 US 647,661 [2011]; accord People vRaucci, 109 AD3d 109, 121-122 [2013], lv denied 22 NY3d 1158[2014]; compare People v John, 27 NY3d at 301).
While the right of the accused to confront witnesses precludes "surrogate testimony,"i.e., the admission of one person's testimonial statements through the in-court testimonyof a second person, no such surrogate testimony was introduced at this trial and noCrawford violation occurred (see Bullcoming v New Mexico, 564 US at651-652, 657-658; Crawford v Washington, 541 US 36, 42, 68-69 [2004];People v Raucci, 109 AD3d at 121-122; compare People v John, 27NY3d at 297 [the "defendant's Sixth Amendment right to confront the witnesses againsthim was violated when the People introduced DNA reports into evidence, asserting that(the) defendant's DNA profile was found on the gun that was the subject of the chargedpossessory weapon offense, without producing a single witness who conducted,witnessed or supervised the laboratory's generation of the DNA profile from the gun or(the) defendant's exemplar"]). Pasqualino testified that the lab technicians, who are underher supervision in the lab, extract, quantify and amplify the DNA in the lab, and anotheranalyst then runs the genetic analyzer that creates the raw data upon which she relies. Shefurther explained that, in this case, she then analyzed and interpreted that raw data andrendered her scientific opinions and conclusions linking the DNA evidence to defendant(compare People v John, 27 NY3d at 313 ["nothing in this record supports theconclusion that the analysts involved in the preliminary testing stages, specifically, theextraction, quanti(fic)ation or amplification stages, are necessary witnesses"]).
There is no evidence in the record that any lab technician or analyst who participatedin the preliminary processing and testing of this DNA evidence engaged in any dataediting, analysis, comparisons or interpretations of the evidence or rendered any opinionsregarding whether the data collected from the rape kit matched defendant's DNA profile;likewise, there is no proof that Pasqualino relied upon any such opinions or conclusionsdrawn by others (see People vRawlins, 10 NY3d 136, 144-146, 158-160 [2008]). Further, the technicians'compilation of objective data was not accusatory and did not, without Pasqualino's expertanalysis and testimony, link defendant to these crimes (see id. at 156, 159). Underthese circumstances, defendant's right of confrontation was not violated when Pasqualinorelied upon and made reference to data collected by nontestifying lab technicians (seePeople v Raucci, 109 AD3d at 121-122).
Defendant's ineffective assistance of counsel claim made on his direct appeal is alsowithout merit. Defense counsel's decision not to object, during a bench trial, to variouscharacterizations of the evidence by the People during summation did not deprivedefendant of meaningful representation (see People v Tonge, 93 NY2d 838, 840[1999]). Further, County Court did not err in denying without a hearing defendant's CPL440.10 motion, which alleged, [*4]among other things,ineffective assistance of counsel based on non-record facts. To establish entitlement to ahearing, a defendant must demonstrate that "non-record facts set forth in [a] CPL article440 motion . . . are material and [that], if established, they would entitle him[or her] to relief" (People vMosley, 121 AD3d 1169, 1174 [2014], lv denied 24 NY3d 1086 [2014];see People v Satterfield, 66 NY2d 796, 799 [1985]; CPL 440.30 [5]). "[I]t isincumbent on [a] defendant [seeking to establish that he or she received ineffectiveassistance of counsel] to demonstrate the absence of strategic or other legitimateexplanations for counsel's" alleged shortcomings (People v Rivera, 71 NY2d 705,709 [1988]; see People vThiel, 134 AD3d 1237, 1240 [2015]).
Defendant contends that, based on his perception that the Trial Judge came to dislikeone of his counsel (hereinafter local counsel), counsel was ineffective for failing to movefor the recusal of the Judge or to move to withdraw his waiver of a jury trial. Even if wewere to conclude that defendant's proof in support of the motion as to the Judge's opinionrose above mere speculation and gave rise to plausible grounds upon which to make amotion for recusal or a motion to withdraw defendant's waiver of his right to a jury trial,the proof does not establish that it was an objectively unreasonable strategy to proceedwith the bench trial. Defendant submitted no proof tending to suggest that defendantwould have fared better by proceeding either with a bench trial before a different judgeor with a jury trial presided over by this Judge.[FN2] Accordingly, defendant's proof failedto establish that it was an objectively unreasonable strategy to proceed with the benchtrial and, thus, County Court properly denied the motion without a hearing (see People v Demetsenare, 14AD3d 792, 793-795 [2005]; People v Shamblee, 222 AD2d 834, 835 [1995],lv denied 88 NY2d 994 [1996]). We reach a similar conclusion with regard todefendant's contention that counsel ought to have presented the testimony of an expertwitness on toxicology. Although this expert would have testified to certain potentiallyexculpatory conclusions, defense counsel's assessment that such testimony would"backfire[ ]" was not objectively unreasonable. According to the expert, he concludedthat, at the relevant time, the victim had a "diminished . . . ability toappreciate what interactions she was involved in." Given that potentially inculpatoryconclusion, defendant failed to establish that it was not a legitimate strategy for defensecounsel to forgo calling that expert witness to testify (see generally People vVenkatesan, 295 AD2d 635, 637-638 [2002], lv denied 99 NY2d 565 [2002],cert denied 549 US 854 [2006]). Finally, defendant's waiver of his right to a jurytrial is no less knowing, voluntary or intelligent even if counsel failed to disclose theparticularities of the Judge's alleged preference for local counsel prior to the waiver'sexecution. Likewise, the waiver is not invalid based on the fact that defendant wasunable to predict that, after he waived his right to a jury trial, the Judge would, indefendant's opinion, eventually develop a less favorable view of local counsel. We haveconsidered defendant's remaining contentions and have concluded that they are alsowithout merit.
Garry, Lynch, Devine and Aarons, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote 1:The proof furtherestablished that Xanax is a Benzodiazepine.
Footnote 2:Notably, the recordestablishes that local counsel believed, at the time that defendant waived a jury trial, thata jury would be particularly hostile to defendant.