| People v Cubero |
| 2018 NY Slip Op 02839 [160 AD3d 1298] |
| April 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael Cubero, Appellant. |
George J. Hoffman Jr., Albany, for appellant.
Rachel Dunn, New York State Justice Center for the Protection of People with SpecialNeeds, Delmar (Jacqueline Kagan of counsel), for respondent.
Eric T. Schneiderman, Attorney General, New York City (Andrew W. Amend of counsel), inhis statutory capacity under Executive Law § 71.
McCarthy, J.P. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered January 7, 2016, upon a verdict convicting defendant of the crimes of criminalsexual act in the third degree (two counts), endangering the welfare of an incompetent orphysically disabled person in the first degree and sexual abuse in the second degree (twocounts).
Defendant was employed as a residence counselor at a group home for adults with mentalillness. In this position, he was responsible for the care and supervision of the facility's residents.One such resident was the victim, who has been diagnosed with schizoaffective disorder andmild mental retardation. In January 2014, the Justice Center for the Protection of People withSpecial Needs, an agency vested with statutory authority to investigate and prosecute crimesinvolving abuse or neglect of individuals with physical or cognitive disabilities (seeExecutive Law § 552 [2] [a], [c]), received a report that the victim had beensexually abused by defendant. After an investigation, a Special Prosecutor for the Justice Centerpresented the case to a grand jury and obtained a 14-count indictment. A jury convicteddefendant of endangering the welfare of an incompetent or physically disabled person in the firstdegree, two counts of criminal sexual act in the third degree and two counts of sexual abuse inthe second degree. County Court imposed an aggregate sentence of eight years in prison to befollowed by 10 years of postrelease supervision. [*2]Defendantappeals.
Defendant first argues that the statute authorizing creation of the Justice Center (seeExecutive Law § 552 [2]) violates the State Constitution because the statute permitsan appointed special prosecutor to conduct prosecutions, thereby usurping the constitutionalresponsibilities and power of the local District Attorney and the Attorney General, both of whomare elected officials. In the alternative, defendant argues that the statute can be viewed asconstitutional only if the District Attorney grants the special prosecutor authority to prosecuteand retains oversight and ultimate responsibility for the prosecution, but that these conditionswere not met in this case. Thus, defendant argues, the indictment must be dismissed because theJustice Center lacked the authority to prosecute him.
Defendant did not raise either prong of this constitutional argument in County Court,rendering the argument unpreserved for our review (see People v Davidson, 27 NY3d 1083, 1086 and n [2016]). Even ifwe could theoretically address the purely legal aspect of defendant's argument, we cannot addressthe alternative argument—which is supported by the Attorney General and could result ina constitutional interpretation of the statute—because that aspect of the argument requiresfactual findings. "The preservation requirement serves the . . . purpose of alertingthe adverse party of the need to develop a record for appeal" (People v Hunter, 17 NY3d 725, 728 [2011]), and no record wasmade on this topic in the trial court because no objection was raised (see People v Chancey, 127 AD3d1409, 1412 [2015], lv denied 25 NY3d 1199 [2015]). This Court is permitted only toreverse or modify in the interest of justice (see CPL 470.15 [3] [c]). But a full review ofthe issue would be impossible without remittal, so, at this point, we do not now know if wewould ultimately reverse, modify or affirm. Because we do not know what the outcome wouldbe, and since it is possible that the outcome could be to affirm, we find no authority that wouldpermit us to take corrective action with respect to this issue in the interest of justice.[FN*]
Defendant next contends, based solely on counsel's failure to raise the above constitutionalargument, that he did not receive the effective assistance of counsel. "A single error rises to thelevel of ineffective assistance only in the rare instance when the error involves an issue that is soclear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and itis evident that the decision to forgo the contention could not have been grounded in a legitimatetrial strategy" (People v McGowan,149 AD3d 1161, 1162 [2017] [internal quotation marks, brackets and citations omitted],lv denied 29 NY3d 999 [2017]; see People v Keschner, 25 NY3d 704, 722 [2015]). The issue thatdefendant now asserts was far from clear-cut at the time of defendant's trial, and remains so; allof the cases that defendant relies upon were decided after his trial and, had they been decidedearlier, none would have been binding on the trial court (see People v Chancey, 127AD3d at 1413). Additionally, it is possible that counsel strategically chose not to raise the issue.Thus, we cannot conclude that defendant was deprived of the effective assistance ofcounsel.
[*3] Defendant's convictions are notagainst the weight of the evidence. "Where, as here, a different verdict would not have beenunreasonable, we will weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (id. at 1410[internal quotation marks and citations omitted]), giving deference to the jury's credibilitydeterminations based on the jurors' "opportunity to view the witnesses, hear thetestimony and observe demeanor" (People v Tompkins, 107 AD3d 1037, 1038 [2013] [internalquotation marks and citations omitted], lv denied 22 NY3d 1044 [2013]; see People v Shoemaker, 119 AD3d1073, 1074-1075 [2014], lv denied 25 NY3d 992 [2015]). Although the victim hascognitive limitations that impact her articulateness and affect her ability to remember dates orcertain details, the jury was able to observe her testimony and evaluate her credibility. It appearsundisputed that, due to her limitations, the victim was unable to consent to sexual activity with astaff member of her residential facility. She testified that on more than one occasion defendantengaged in oral sex with her and attempted to engage in anal sex but stopped at her request. Anexpert who testified regarding rape trauma syndrome explained, among other things, why victimsmay delay reporting abuse or be unclear as to certain details.
Additionally, a recording of defendant's statement to investigators was admitted intoevidence. In that statement, defendant admitted to putting his penis in the victim's mouth on twodifferent dates. He corroborated the victim's testimony regarding the location of these incidents,how they cleaned up afterwards, that he showed her pornography and that he is uncircumcised. AState Police investigator testified that pornography was discovered on a computer in the facility'soffice under defendant's username and password. Deferring to the jury's credibilitydeterminations, the guilty verdict is not against the weight of the evidence (see People v Fournier, 137 AD3d1318, 1320 [2016], lv denied 28 NY3d 929 [2016]).
County Court properly denied defendant's motion to suppress the inculpatory statements thathe made to Justice Center investigators. "Determining whether a statement is voluntary is afactual issue governed by the totality of the circumstances and the credibility assessments of thesuppression court in making that determination are entitled to deference" (People v Steigler, 152 AD3d 1083,1083 [2017] [internal quotation marks and citations omitted], lv denied 30 NY3d 983[2017]; see People v Guilford, 21NY3d 205, 208 [2013]). Testimony at the suppression hearing established that the interviewwith defendant lasted approximately two hours and took place in his employer's office, whichwas a neutral location. The investigators explained to defendant that he did not have to answertheir questions and could leave at any time. He was not restrained, sat closest to the door and, atone point, interrupted the interview to call his wife. At the end of the interview, defendant left onhis own and went home. Inasmuch as "[t]he police are permitted to lie or use some deceptivemethods in their questioning as long as 'the deception was [not] so fundamentally unfair as todeny due process,' [t]he limited use of those tactics here was not so extensive as to induce a falseconfession or overcome defendant's will, which would render defendant's statementsinadmissible" (People v Berumen,46 AD3d 1019, 1020-1021 [2007] [citation omitted], lv denied 10 NY3d 808 [2008],quoting People v Tarsia, 50 NY2d 1, 11 [1980]; see People v Jaeger, 96 AD3d 1172, 1174 [2012], lv denied19 NY3d 997 [2012]). Accordingly, the court did not err in denying defendant's suppressionmotion.
Finally, defendant's sentence was neither harsh nor excessive. County Court consideredletters in support of defendant and that he had no prior criminal history. The court alsoconsidered that defendant took advantage of a position of trust to fulfill his own sexual desires byabusing a particularly vulnerable, mentally ill person. Hence, the sentencing court did not abuseits discretion and no extraordinary circumstances exist that would warrant modifying thesentence.
[*4] Clark, Aarons and Pritzker, JJ.,concur.
Lynch, J. (dissenting). I respectfully dissent. As outlined by the majority, defendant hasraised a constitutional challenge to Executive Law article 20, establishing the Justice Center forthe Protection of People with Special Needs, that was not preserved before County Court. Themajority has concluded that we lack authority to take corrective action in the interest of justice toremit for further factual findings as to whether the Special Prosecutor acted with the consent ofthe District Attorney (see CPL 470.15 [3] [c]; [6]). For convincing reasons articulated byJudge Rivera in her dissenting opinion in People v Davidson (27 NY3d 1083 [2016]), for this statute to passconstitutional muster, the "special prosecutor may only appear in accordance with the authorizingstatute, upon consent of the local District Attorney" (id. at 1087). There is no dispute thatthe record here was not developed on that issue. In my view, we have the inherent authority toremit this matter for further proceedings to develop the factual record on the consent issue(see id. at 1087, 1096). Fundamentally, "[a]n appeal from a judgment brings up thequestion whether justice has been done in the particular case" (People v Miles, 173 AppDiv 179, 183 [1916]; see People vLopez, 6 NY3d 248, 259-260 [2006]; People v Pollenz, 67 NY2d 264, 268-269[1986]; People v Thompson, 60 NY2d 513, 520 [1983]). Whether the Special Prosecutorwas actually authorized to prosecute this matter presents just such a concern that enables us toremit for further development of the record. Depending on the outcome of such proceedings, wemay then address whether to exercise our interest of justice jurisdiction under CPL 470.15 (3) (c)and (6). Consequently, I would withhold decision and remit the matter to determine whether theDistrict Attorney consented to defendant's prosecution.
Ordered that the judgment is affirmed.
Footnote *:While the dissent asserts that wehave inherent authority to remit for development of a record, and this and every appeal" 'brings up the question whether justice has been done in the particular case' "(dissenting op at 1302, quoting People v Miles, 173 App Div 179, 183 [1916]), we cannot exceed thisCourt's jurisdiction, even to satisfy our own sense of justice.