| People v Kamp |
| 2018 NY Slip Op 03571 [161 AD3d 1394] |
| May 17, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v David L. Kamp, Appellant. |
Halscott Megaro, PA, Orlando, Florida (Patrick Michael Megaro of counsel), forappellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Aarons, J. Appeal, by permission, from an order of the County Court of Otsego County(Burns, J.), entered November 22, 2016, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crime of criminal sexual act in the thirddegree (six counts), without a hearing.
In November 2013, defendant was convicted, following a jury trial, of six counts of criminalsexual act in the third degree. Defendant was sentenced to an aggregate prison term of 18 years,to be followed by 10 years of postrelease supervision. Defendant's appeal from the judgment ofconviction was thereafter affirmed by this Court (129 AD3d 1339 [2015], lv denied 26NY3d 969 [2015]). In September 2016, defendant moved under CPL 440.10 (1) to vacate thejudgment of conviction on the basis of newly discovered evidence—namely, a forensicreport—concluding that the audio recording admitted at trial of defendant's interrogationwas not authentic, and because of alleged deficient representation. County Court denied themotion without a hearing. With this Court's permission, defendant now appeals.
We find no merit in defendant's argument that the forensic report challenging the authenticityof the recorded interrogation constituted newly discovered evidence. Defendant failed todemonstrate that such report could not have been obtained with due diligence prior to trial(see People v Mack, 301 AD2d 863, 864-865 [2003], lv denied 100 NY2d 540[2003]; People v Wong, 256 AD2d 724, 726 [1998], lv denied 93 NY2d 903[1999]). Additionally, as [*2]County Court found, the forensicreport is merely impeachment evidence to attack the trial testimony of the investigator whotestified as to the authenticity of the recording (see People v Tucker, 40 AD3d 1213, 1215 [2007], lvdenied 9 NY3d 882 [2007]). Furthermore, even if we agreed with defendant that the reportconstituted newly discovered evidence, there was no reasonable probability that it would havechanged the outcome (see People vTerry, 44 AD3d 1157, 1159 [2007], lv denied 10 NY3d 772 [2008]; People vTucker, 40 AD3d at 1215; People v Civitello, 152 AD2d 812, 814-815 [1989], lvdenied 74 NY2d 947 [1989]).
Defendant also argues that he received ineffective assistance because his trial counsel failedto investigate whether the audio recording of his interrogation was authentic and failed to objectto its admission into evidence. In particular, defendant asserts that the People's case hinged uponthis evidence. Contrary to this assertion, however, the People introduced testimony from thevictim about defendant's inappropriate acts, which was further corroborated by other witnesses.Almost all of these witnesses were thoroughly cross-examined and, as defendant recognizes, hedid not fully admit to the alleged wrongdoing during his interrogation.
In view of the foregoing, we cannot say that the failure to investigate the authenticity of theaudio recording or to object to its admission constituted ineffective assistance (see People v Zayas-Torres, 143 AD3d1176, 1177-1178 [2016], lv denied 30 NY3d 984 [2017]; People v Miller, 45 AD3d 1190,1190-1191 [2007]; People v Williams, 306 AD2d 763, 765 [2003], lv denied 100NY2d 625 [2003]). Moreover, given that defendant's trial counsel gave opening and closingstatements, made pretrial motions, vigorously cross-examined the People's witnesses and offeredproof on defendant's behalf, the trial record and written submissions fail to disclose thatdefendant was deprived of meaningful representation (see People v Blackman, 90 AD3d 1304, 1311-1312 [2011], lvdenied 19 NY3d 971 [2012]; Peoplev Avery, 80 AD3d 982, 987 [2011], lv denied 17 NY3d 791 [2011]).Accordingly, County Court properly denied defendant's motion without a hearing (see Peoplev Satterfield, 66 NY2d 796, 799-800 [1985]; People v Bethune, 80 AD3d 1075, 1076 [2011], lv denied17 NY3d 792 [2011]; People vBrown, 23 AD3d 702, 703 [2005], lv denied 6 NY3d 774 [2006]; People v Demetsenare, 14 AD3d792, 795 [2005]).
McCarthy, J.P., Devine, Mulvey and Pritzker, JJ., concur. Ordered that the order isaffirmed.