| People v Cayea |
| 2018 NY Slip Op 05372 [163 AD3d 1279] |
| July 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Benjamin A. Cayea, Appellant. |
Robert Lalonde, Ithaca, for appellant.
Joseph G. Fazzary, District Attorney, Watkins Glen (Hannah Moore, New York StateProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the County Court of Tompkins County (Cassidy, J.),rendered December 7, 2015, upon a verdict convicting defendant of the crime of murder in thesecond degree.
Following a jury trial, defendant was convicted of murder in the second degree stemmingfrom an incident where he caused the death of his girlfriend (hereinafter the victim), a collegestudent. Defendant was thereafter sentenced to a prison term of 22 years to life. Defendant nowappeals, and we affirm.
Regarding defendant's challenge to County Court's Molineux ruling, which permittedthe People to admit evidence from the victim's therapist and two of the victim's friends regardingprior instances of violence between the victim and defendant, such claim is unpreserved for ourreview in light of defendant's failure to object at the suppression hearing or at trial (see People v Reynoso-Fabian, 134AD3d 1141, 1146 [2015]; People v Tinning, 142 AD2d 402, 406 [1988], lvdenied 73 NY2d 1022 [1989]). Similarly, defendant's argument that much of this testimonyconstitutes inadmissible hearsay is unpreserved for our review based upon his failure to object(see People v Bertone, 16 AD3d710, 712 [2005], lv denied 5 NY3d 759 [2005]; People v Dunn, 204 AD2d919, 920-921 [1994], lv denied 84 NY2d 907 [1994]).
We turn next to defendant's contention that County Court erred in its CPL 60.43 ruling. CPL60.43 provides that "[e]vidence of the victim's sexual conduct, including the past sexual conductof a deceased victim, may not be admitted in a prosecution for any offense . . .unless such evidence is determined by the court to be relevant and admissible in the interests ofjustice, after an offer of proof by the proponent of such evidence outside the hearing of the jury. . . and a statement by the court of its findings of fact essential to its determination.""A court's discretion in making evidentiary rulings is circumscribed by the rules of evidence andthe defendant's constitutional right to present a defense" (People v Taylor, 40 AD3d 782, 783-784 [2007] [citation omitted],lv denied 9 NY3d 927 [2007]).
Prior to trial, the People filed a motion to exclude evidence of the victim's past sexualconduct pursuant to CPL 60.43 as "the victim's prior sexual history ha[d] no relevance to. . . defendant's defense." Thereafter, defendant filed an offer of proof pursuant toCPL 60.43 seeking to admit proof of the victim's involvement in bondage, dominance,submission and sadomasochism, which included choking and breath restriction. County Courtheld that it would permit defendant to testify, to show his state of mind, that, on the day thevictim died, she demanded defendant choke her during sex, foreplay and intercourse and thatdefendant and the victim conflicted over the force and duration of the choking. The court alsoallowed defendant to testify about his relationship with the victim, specifically that, during sex,the victim consistently demanded that he choke or strangle her and that she insisted that he chokeher more forcefully and longer. To that end, the court also allowed admission of Facebookmessages between defendant and the victim about choking. County Court, however, did notpermit evidence that the victim engaged in similar behavior with a prior boyfriend nor testimonyof the victim's friends regarding statements by the victim that she had participated in chokingduring sexual activities. The court also did not allow evidence that the victim participated insexual activities where she was tied up and beaten for the purpose of sexual gratification and thatimplements to fulfill such sexual activities were found in her apartment.
Inasmuch as the proffered testimony of the victim's prior boyfriend and friends constitutedinadmissible hearsay, County Court properly precluded the admission thereof (see People v Ramsaran, 154 AD3d1051, 1052 [2017], lv denied 30 NY3d 1063 [2017]; compare People v Johnson, 79 AD3d1264, 1266-1267 [2010], lv denied 16 NY3d 832 [2011]). Further, the court properlyruled that testimony relating to the victim's sexual activities and any implements related to thoseactivities, which were found in her apartment, were inadmissible because that evidence was notrelevant to defendant's defense that he was choking the victim for her gratification (seePeople v Taylor, 40 AD3d at 785; People v Tenace, 232 AD2d 896, 898 [1996],lv denied 89 NY2d 989 [1997]).
We disagree with defendant's claim that County Court erred in allowing into evidenceautopsy photographs. The photographs, as explained by the pathologist who conducted theautopsy, depicted injuries to the victim's face, neck, ear, finger and scalp. Upon a review of therecord, we find that the court did not abuse its discretion by admitting the autopsy photographsbecause the purpose of their admission was not to arouse the emotions of the jury, but todemonstrate that defendant's argument that he was choking the victim for her pleasure did notcomport with the evidence in the photographs, which established that there was trauma to partsof the victim's body besides her neck (see People v White, 153 AD3d 1565, 1566 [2017], lvdenied 30 NY3d 1065 [2017]; People v Timmons, 78 AD3d 1241, 1244-1245 [2010], lvdenied 16 NY3d 837 [2011]).
We find defendant's argument that he did not receive the effective assistance of counselequally unavailing. To determine if a defendant was provided with the effective assistance ofcounsel, the relevant inquiry is whether "[t]he record as a whole reveals that defendant receivedmeaningful representation" (People vHenderson, 27 NY3d 509, 513 [2016]; see People v LaDuke, 140 AD3d 1467, 1472 [2016]). "A defendantmust establish that strategic or other legitimate explanations do not exist to explain defensecounsel's perceived inadequacies" (People v Ildefonso, 150 AD3d 1388, 1388 [2017] [internalquotation marks and citations omitted], lv denied 30 NY3d 980 [2017]). Initially, wedisagree with defendant's contention that trial counsel was ineffective in failing to pursue thedefense of extreme emotional disturbance. Pursuant to CPL 250.10, trial counsel put the Peopleon notice that he sought to introduce evidence of the affirmative defense of extreme emotionaldisturbance, including a forensic psychological evaluation. However, after the People's motion toexclude the evaluation and County Court's subsequent determination that defendant could presentthis defense, trial counsel withdrew it. The record makes clear that trial counsel's decision towithdraw this defense was because he decided to argue that defendant did not intend to cause thedeath of the victim, a defense that may be considered inconsistent with the extreme emotionaldisturbance defense. Under the circumstances and evidence presented, this was a legitimate trialstrategy and, therefore, defense counsel's performance does not fall to the level of ineffectiveassistance of counsel (see People vPerry, 148 AD3d 1224, 1225 [2017]).
We find defendant's contentions regarding trial counsel's failure to request suppression ofdefendant's statements to the police investigator to be equally unavailing, given that he offers noexplanation of what specifically trial counsel should have sought to suppress and does notcontend that he had any colorable claim that he was entitled to suppression of any evidence(see People v Ildefonso, 150 AD3d at 1389; see also People v Vonneida, 130 AD3d 1322, 1322-1323 [2015],lv denied 26 NY3d 1093 [2015]). We also find trial counsel's omnibus motion to besufficient as it requested, among other things, to inspect the grand jury minutes, sought recordsfrom the victim's therapist and sought to compel the People to disclose all evidence favorable orexculpatory to the defense. As to defendant's argument that trial counsel failed to request achange of venue due to many of the potential jurors being connected to the college attended bythe victim, there is no evidence that such motion would have been successful because there wasno evidence in the record to suggest that the jury was incapable of being fair and impartial (see People v Donahue, 81 AD3d1348, 1349 [2011], lv denied 16 NY3d 894 [2011]; People v Ector, 126AD2d 904, 904-905 [1987]). We are similarly unpersuaded by defendant's argument that trialcounsel was ineffective in failing to request an independent autopsy, inasmuch as defendant hasnot demonstrated that there was any basis for such a request (see People v Weir, 96 AD3d 1486, 1487 [2012], lv denied20 NY3d 936 [2012]).
Finally, we find no merit to defendant's claim that the sentence imposed was harsh andexcessive. The sentence of 22 years to life is less than the statutory maximum for a conviction ofmurder in the second degree (see Penal Law §§ 70.00 [2], [3] [a] [i];125.25 [1]; People v Kaszubinski,55 AD3d 1133, 1137 [2008], lv denied 12 NY3d 855 [2009]). Despite defendant'sapparent lack of premeditation, demonstration of remorse and lack of criminal history, because ofthe violent nature of the murder, we find no abuse of discretion or extraordinary circumstanceswarranting a modification of the sentence in the interest of justice (see People v Leduc, 140 AD3d1305, 1308 [2016], lv denied 28 NY3d 932 [2016]; People v Capers, 129 AD3d 1313,1319 [2015], lv denied 27 NY3d 994 [2016]).
Defendant's remaining contentions are unavailing.
Garry, P.J., Egan Jr., Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.