| People v Devictor-Lopez |
| 2017 NY Slip Op 08408 [155 AD3d 1434] |
| November 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Edgardo E.Devictor-Lopez, Appellant. |
George J. Hoffman Jr., Albany, for appellant.
Kelli P. McCoski, District Attorney, Fonda (Christina Pearson of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered January 31, 2014, upon a verdict convicting defendant of the crimes ofburglary in the first degree, menacing in the first degree, criminal possession of a weapon in thethird degree, unlawful imprisonment in the second degree, coercion in the second degree andharassment in the second degree.
Defendant entered the apartment of his former girlfriend (hereinafter the victim), hit her,threatened her with a box cutter and refused to allow her to leave for several hours. As a result,he was convicted after trial of burglary in the first degree, menacing in the first degree, criminalpossession of a weapon in the third degree, unlawful imprisonment in the second degree,coercion in the second degree and harassment in the second degree. County Court imposed aprison term of 12 years with five years of postrelease supervision for defendant's burglaryconviction and shorter concurrent terms on the other convictions. Defendant appeals.
The verdict is not against the weight of the evidence. "Where, as here, a different verdictwould not have been unreasonable, we weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony" (People v Scippio, 144 AD3d 1184,1185 [2016] [internal quotation marks and citations omitted], lv denied 28 NY3d 1150[2017]). Defendant challenges only his conviction of burglary in the first degree. For that charge,the People were required to prove that defendant "knowingly enter[ed] or remain[ed] unlawfullyin a dwelling with intent to commit a crime [*2]therein, andwhen, in effecting entry or while in the dwelling or in immediate flight therefrom, he or anotherparticipant in the crime . . . [u]se[d] or threaten[ed] the immediate use of adangerous instrument" (Penal Law § 140.30 [3]). Although defendanttestified—in direct contradiction of the victim's testimony—that the incident simplydid not occur, he now focuses on the element of unlawfully entering, asserting that he waslawfully present because he lived in the apartment. Defendant testified that he moved into thevictim's apartment a few days after they began their relationship, and he lived there every dayuntil this incident. He testified that the victim gave him two keys to the front doors, he kept hisclothing and personal papers there and he received mail at that address. On cross-examination,the People elicited that the pedigree section of the police report completed in connection withdefendant's arrest on these charges listed an address for defendant that was not the victim'sapartment.
The victim testified that defendant stayed at her apartment three to five nights per week whilethey were together. According to her, they were still talking at the time of the incident, but theyhad not been together for a few weeks. She testified that she never asked defendant to live in herapartment, put his name on the lease or gave him a key. She further testified that he used theaddress to receive some important mail because her mailbox had a lock, but he did not receive allof his mail there. He left some clothing at her house, but he normally brought a bag with hisclothing and personal items if he planned to stay over.
The victim testified that when she returned home on the night of the incident, she did not seeanyone in the house, and the doors were locked before she went to sleep; the front door was stilllocked when she finally tried to escape from the apartment. Contrary to defendant's testimonythat the bathroom window lock was operational, the victim and two police officers testified thatthe lock did not work and the window could not be securely shut. A wooden pallet wasdiscovered against the house underneath that window, and handprints on the outside of the glassindicated that it had been pushed up. Viewed in a neutral light and giving deference to the jury'scredibility determinations, the evidence supports the findings that defendant did not live in thevictim's apartment at the time of the incident, he entered through the bathroom window while shewas asleep, with the intent to commit a crime, and he threatened use of a dangerous instrumentwhile in the dwelling (see People vCooley, 149 AD3d 1268, 1269-1270 [2017], lv denied 30 NY3d 979 [2017]; People vDavis, 105 AD3d 1095, 1096-1097 [2013], lv denied 21 NY3d 1003 [2013]).Thus, the conviction for burglary in the first degree is not against the weight of the evidence (see People v Lewis, 99 AD3d1104, 1104 [2012], lv denied 21 NY3d 1017 [2013]).
Defendant contends that he was denied the effective assistance of counsel because counselfailed to object during summation,[FN*] failed to request any hearings regarding the tapeof the victim's 911 call, agreed to proceed without defendant being present, provided a cursoryopening statement and made various mistakes during his summation. "A defendant's right to theeffective assistance of counsel will be satisfied so long as the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of the representation,[*3]reveal that the attorney provided meaningful representation"(People v Muriel, 75 AD3d908, 911 [2010] [internal quotation marks and citations omitted], lv denied 15 NY3d922 [2010]). In summation, the prosecutor stated several times that he thought defendant'stestimony contained lies and was "completely false," whereas he thought the victim gave anaccurate and honest account of what happened. This was not a situation where the prosecutormisrepresented the evidence, encouraged the jury to find guilt based on facts not in evidence orimproperly shifted the burden of proof (compare People v Wright, 25 NY3d 769, 780-781 [2015]; People v Fisher, 18 NY3d 964,966-967 [2012]; People v Wright,133 AD3d 1097, 1097-1098 [2015]). Although "a prosecutor may not express personalopinions concerning the credibility of witnesses who testify at trial" and should not refer to adefendant's testimony as "lies," reversal is generally required based on such statements only "ifthe conduct has caused substantial prejudice to the defendant so that he [or she] has been denieddue process of law" (People v Russell, 307 AD2d 385, 386 [2003] [internal quotationmarks and citation omitted]).
While the prosecutor here should not have expressed his personal thoughts, used the phrase"I think" when discussing defendant's or the victim's testimony or stated that defendant'stestimony "was all a lie" (see id.), it was not necessarily improper for him to comment onwitness credibility by asking the jury to question whether defendant was telling the truth and toassert that the victim gave an accurate account to the best of her ability considering the passageof time. In any event, the prosecutor's improper comments were confined to one section of hissummation, rather than dispersed throughout, and County Court instructed the jury both beforeand after summations that what the lawyers said was not evidence and the jury alone wasresponsible for finding facts. Because "the record as a whole fails to disclose that the prosecutorengaged in a flagrant and pervasive pattern of prosecutorial misconduct so as to deprivedefendant of a fair trial" (People vGreen, 119 AD3d 23, 30 [2014] [internal quotation marks, brackets and citationsomitted], lv denied 23 NY3d 1062 [2014]; see People v Fiorino, 130 AD3d 1376, 1380 [2015], lvdenied 26 NY3d 1087 [2015]), counsel's failure to object to the summation did not deprivedefendant of effective assistance.
Counsel was not ineffective for failing to request suppression or audibility hearings regardingthe 911 tape. Even without a motion, County Court stated that it would determine if there was anaudibility issue, so the failure to request such a hearing was irrelevant. Moreover, counsel mayhave strategically determined that such motions would not have been successful; indeed,defendant does not explain how they would have been. Instead, counsel attacked the tape onsummation, arguing that it was unclear what was occurring, no one identified themselves on thetape, and the evidence did not prove that it came from the victim's phone or residence.
Defendant complains that counsel agreed to proceed without him when he was not on timefor the first day of trial. County Court had previously issued Parker warnings andindicated that it intended to proceed in defendant's absence because he lacked a legitimate reasonfor being late. While counsel could have requested an adjournment, it appears unlikely that thecourt would have granted one. Defendant arrived while jury selection was ongoing, and he waspresent for the remainder of the trial. Separately, defendant faults counsel for failing to argueagainst his remand during trial, but defendant asserted that transportation problems preventedhim from appearing in court until after noon each day, and he offered no assurance that he wouldappear on time. His incarceration for those two nights permitted him to timely appear for trialthereafter.
Though defense counsel chose to make a short opening statement, he was not required tomake one at all (see CPL 260.30 [4]; compare CPL 260.30 [3]). Counsel assertedto the jury that the People's explanation of the evidence would not be borne out, and when itheard how the [*4]events really occurred, it would havereasonable doubt and be required to return a verdict of not guilty. While counsel could havepresented a longer or more powerful opening statement, he was not ineffective for failing to doso. Similarly, while counsel's summation was short, he argued that reasonable doubt existed, thevictim did not have substantial injuries and waited more than an hour before going to thehospital, no box cutter was located and only the victim testified to its existence, the 911 call didnot establish anything, and defendant did not have a motive to commit these crimes. Despitedefendant's contention that counsel failed to argue that he lived with the victim, counsel did stateduring his summation that defendant lived in the apartment and had a key.
A defendant is not entitled to perfect or error-free representation. Considering counsel'srepresentation as a whole—including engaging in relevant motion practice and effectivelycross-examining witnesses, and despite defendant's refusal at times to communicate with counselor accept his advice—counsel provided effective assistance to defendant (see People v Goldston, 126 AD3d1175, 1179 [2015], lv denied 25 NY3d 1201 [2015]; People v Fulwood, 86 AD3d 809,811 [2011], lv denied 17 NY3d 952 [2011]).
County Court indicated, when imposing a sentence that was less than half the maximumpermitted, that it considered defendant's young age, upbringing and personal problems, but alsothe violent nature of these crimes and his criminal history. The court did not abuse its discretionduring sentencing, nor are any extraordinary circumstances present that would warrant areduction of the sentence in the interest of justice (see People v McGowan, 149 AD3d 1161, 1163 [2017], lvdenied 29 NY3d 999 [2017]).
Lynch, Devine, Clark and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:By not objecting during theprosecutor's summation, counsel failed to preserve defendant's argument that the prosecutor'simproper comments deprived him of a fair trial (see People v Scippio, 144 AD3d at1187). We will not address this unpreserved argument in its own right, but only to see if thefailure to object constituted or contributed to any alleged ineffectiveness by counsel.