| People v Anwar |
| 2017 NY Slip Op 04605 [151 AD3d 1628] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Omar Anwar, Appellant. |
The Wiesner Law Firm, New York City (Neal Wiesner of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedFebruary 6, 2012. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree, criminal sexual act in the first degree (two counts), sexual abuse in the first degree,unlawful imprisonment in the second degree and assault in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofrape in the first degree (Penal Law § 130.35 [1]), two counts of criminal sexual actin the first degree (§ 130.50 [1]), sexual abuse in the first degree(§ 130.65 [1]), unlawful imprisonment in the second degree (§ 135.05)and assault in the third degree (§ 120.00 [1]). We reject defendant's contention thatthe verdict is against the weight of the evidence on the issues of forcible compulsion and thevictim's consent. Viewing the evidence in light of the elements of the crimes as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the jury did not fail to give the evidence theweight it should be accorded on those issues (see People v Strauss, 147 AD3d 1426, 1426 [2017]; People v Black, 137 AD3d 1679,1680 [2016], lv denied 27 NY3d 1128 [2016], denied reconsideration 28 NY3d1026 [2016]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's further contention that he was deprived of a fair trial by County Court'sevidentiary ruling permitting the People to cross-examine him concerning statements he made ina recent interview in jail by FBI agents. Contrary to defendant's contention, there was noviolation of his rights under the New York right to counsel rule, which permits the use ofuncounseled statements of a defendant for purposes of impeachment even where the use of suchstatements would be precluded on the People's case-in-chief (see generally People vMaerling, 64 NY2d 134, 140 [1984]; People v Ricco, 56 NY2d 320, 323-326 [1982];People v Dansa, 172 AD2d 1011, 1012 [1991], lv denied 78 NY2d 964 [1991]).Here, the court properly concluded that defendant opened the door to such impeachment (see People v Abrams, 73 AD3d1225, 1227-1228 [2010], affd 17 NY3d 760 [2011]; People v Ortiz, 292AD2d 307, 307 [2002], lv denied 98 NY2d 700 [2002]; see generally People vGoodson, 57 NY2d 828, 830 [1982]; People v Cordero, 110 AD3d 1468, 1470 [2013], lv denied22 NY3d 1137 [2014]).
We do not address defendant's contention that he was deprived of a fair trial by the court'sdenial of his request to call his friend "Modi" as a witness. Although the court and counseldiscussed the prospect of the defense's calling that witness, as well as the inadmissible hearsaynature of the proffered testimony, the court did not definitively rule on the matter (see People v Billip, 65 AD3d 430,430-431 [2009], lv denied 13 NY3d 834 [2009]; cf. People v Finch, 23 NY3d 408, 413 [2014]).
Finally, we reject defendant's contention that he was denied effective assistance of counsel.Defendant failed " 'to demonstrate the absence of strategic or other legitimateexplanations' for counsel's alleged shortcomings" (People v Benevento, 91 NY2d 708,712 [1998]; see People v Bank, 129AD3d 1445, 1447 [2015], affd 28 NY3d 131 [2016]). Viewing the evidence, the law,and the circumstances of this case in totality and as of the time of the representation, we concludethat defense counsel provided defendant with meaningful representation (see generally Peoplev Baldi, 54 NY2d 137, 147 [1981]; People v Jones, 147 AD3d 1521, 1521-1522 [2017]).Present—Whalen, P.J., Carni, NeMoyer, Curran and Troutman, JJ.