| People v Switts |
| 2017 NY Slip Op 02226 [148 AD3d 1610] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v RichardM. Switts, Appellant. (Appeal No. 1.) |
Linda M. Campbell, 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 (Donald E. Todd, J.), renderedDecember 8, 2014. The judgment convicted defendant, upon a jury verdict, of criminal sexual actin the second degree (six counts), sexual abuse in the second degree (two counts), and sexualabuse in the third degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon ajury verdict of, inter alia, six counts of criminal sexual act in the second degree (Penal Law§ 130.45 [1]). In appeal No. 2, defendant appeals from an order denying, without ahearing, his motion pursuant to CPL 440.10 seeking to vacate the judgment of conviction.
We reject defendant's contention in appeal No. 1 that County Court erred in excludingevidence based on the Rape Shield Law (CPL 60.42; see People v Scott, 16 NY3d 589, 593-594 [2011]). All of theevidence in question, including evidence related to emergency contraception, was within thescope of the statute as "[e]vidence of [the] victim's sexual conduct" (CPL 60.42; see generally People v Vogel, 66 AD3d1367, 1368 [2009], lv denied 13 NY3d 942 [2010]; People v Davis, 45 AD3d 1351,1351-1352 [2007]), and "defendant failed to demonstrate that such evidence was 'relevant andadmissible in the interests of justice' " (Davis, 45 AD3d at 1351, quoting CPL60.42 [5]; see People v Halter, 19NY3d 1046, 1049 [2012]; People vWilliams, 61 AD3d 1383, 1383 [2009], lv denied 13 NY3d 751 [2009]).Inasmuch as defendant was able to testify to alternative explanations for the ambiguous contentof a recorded telephone conversation he had with the victim that was alleged by the People torefer to the charged crimes, the court did not abuse its discretion in precluding testimony that theconversation referred to other sexual conduct involving the victim (see generally Halter,19 NY3d at 1049-1050; People vSimmons, 106 AD3d 1115, 1116 [2013], lv denied 22 NY3d 1043 [2013]).Moreover, the alleged connection between one of the precluded lines of testimony and a motivefor the victim to fabricate her allegations was speculative and " 'so tenuous that the [lineof testimony] was entirely irrelevant' " (People v Carrasquillo, 85 AD3d 1618, 1619 [2011], lvdenied 17 NY3d 814 [2011]; see People v Perryman, 178 AD2d 916, 917 [1991],lv denied 79 NY2d 1005 [1992]).
Contrary to defendant's further contention in appeal No. 1, the court did not err in denying hisBatson application concerning the People's use of a peremptory challenge to excuse thesole Asian-American prospective juror. The prosecutor gave race-neutral reasons for excludingthat prospective juror, i.e., her body language (see People v Harris, 50 AD3d 1608, 1608 [2008], lv denied10 NY3d 959 [2008]; People v Bodine, 283 AD2d 979, 979 [2001], lv denied96 NY2d 898 [2001]), her disclosure that her stepdaughter had a conviction from a neighboringcounty (see People v Ball, 11 AD3d904, 905 [2004], lv denied 3 NY3d 755 [2004], denied upon reconsideration4 NY3d 741 [2004]; see also People v Buntley, 286 AD2d 909, 909 [2001], lvdenied 97 NY2d 751 [2002]), and her performance of work for the court's law clerk (seegenerally People v Allen, 86 NY2d 101, 110 [1995]), and defendant did not [*2]meet his ultimate burden of establishing that those reasons werepretextual (see People v Torres, 129AD3d 1535, 1536 [2015], lv denied 26 NY3d 936 [2015]).
Defendant contends in appeal No. 2 that the court erred in denying his CPL 440.10 motionwithout a hearing to the extent that it alleged that the People committed Brady andRosario violations by failing to disclose a flash drive containing a typewritten statementby the victim that a police investigator used as a basis for the victim's supporting deposition. ThePeople disclosed hard copies of the typewritten statement and deposition prior to trial, anddefense counsel did not raise any objection when the investigator mentioned the flash drive in histrial testimony. Even assuming, arguendo, that the relevant part of the motion was not subject todenial on procedural grounds (cf. CPL 440.10 [2] [b]; [3] [a]), we reject defendant'scontention. Defendant did not make a prima facie showing of a reasonable possibility that thenondisclosure of the flash drive contributed to his conviction. Thus, regardless of whether hemade a specific discovery request encompassing the flash drive for purposes of his Bradyclaim, he failed to establish materiality under Brady or prejudice under Rosario(see People v Fuentes, 12 NY3d259, 263-264 [2009], rearg denied 13 NY3d 766 [2009]; People v Jackson,78 NY2d 638, 648-649 [1991]; People vPennington, 107 AD3d 1602, 1603 [2013], lv denied 22 NY3d 958 [2013]; People v Saxton, 93 AD3d 1077,1078-1079 [2012], lv denied 18 NY3d 998 [2012]).
Finally, we reject defendant's contention in both appeals that he was denied effectiveassistance of counsel. Defendant was not entitled to a hearing on the part of his CPL 440.10motion alleging ineffective assistance of counsel because the trial record and the motionsubmissions, including an affidavit from defendant's trial counsel, sufficiently established thatcounsel's trial strategy was consistent with the actions of a reasonably competent attorney (seePeople v Satterfield, 66 NY2d 796, 799-800 [1985]; People v King, 44 AD3d 366, 366 [2007], lv denied 9NY3d 1035 [2008]; see generally Peoplev Henderson, 27 NY3d 509, 514 [2016]). Contrary to defendant's contentions, counselwas not ineffective in failing to conduct a more "hard-hitting" cross-examination of the victim(see People v Izzo, 104 AD3d964, 967 [2013], lv denied 21 NY3d 1005 [2013]; People v De Marco, 33 AD3d1045, 1046 [2006]; see also Peoplev Gaffney, 30 AD3d 1096, 1097 [2006], lv denied 7 NY3d 789 [2006]), or infailing to use the jury selection process to demonstrate that expert testimony on child sexualabuse accommodation syndrome should be precluded because the subject was within theunderstanding of the jurors (seegenerally People v Nicholson, 26 NY3d 813, 829 [2016]; People v Morgan, 77 AD3d 1419,1420 [2010], lv denied 15 NY3d 922 [2010]). Present—Whalen, P.J., Centra,Peradotto, DeJoseph and Scudder, JJ.