| People v Graham |
| 2019 NY Slip Op 03246 [171 AD3d 1566] |
| April 26, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Charles Graham, Also Known as Chuck Graham,Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Brittney Clark of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedAugust 26, 2016. The judgment convicted defendant, upon a jury verdict, of predatory sexualassault against a child (four counts), sexual abuse in the first degree and endangering the welfareof a child (four counts).
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, of,inter alia, four counts of predatory sexual assault against a child (Penal Law§ 130.96) and one count of sexual abuse in the first degree (§ 130.65[3]). We affirm.
Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to support the conviction inasmuch as his motion for a trial order of dismissal wasnot " 'specifically directed' " at the alleged deficiency in the proof raised onappeal (People v Hawkins, 11 NY3d484, 492 [2008], quoting People v Gray, 86 NY2d 10, 19 [1995]). Nonetheless, thisCourt " 'necessarily review[s] the evidence adduced as to each of the elements of thecrimes in the context of our review of defendant's challenge regarding the weight of theevidence' " (People vStepney, 93 AD3d 1297, 1298 [4th Dept 2012], lv denied 19 NY3d 968 [2012];see People v Danielson, 9 NY3d342, 349 [2007]). Viewing the evidence in light of the elements of the crimes as charged tothe jury (see Danielson, 9 NY3d at 349), we reject defendant's contention that the verdictis against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). "[R]esolution of issues of credibility, as well as the weight to be accorded to theevidence presented, are primarily questions to be determined by the jury" (People v Witherspoon, 66 AD3d1456, 1457 [4th Dept 2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]), and we perceive no basis to disturb the jury's determinations.
We reject defendant's contention that he was deprived of effective assistance of counsel.Defendant contends that defense counsel failed to cross-examine the victim about her history oflying, but "attempting to attack the victim's credibility with . . . specific instance[s]of alleged untruthfulness [is] a tactic that is per se improper" (People v Drake, 138 AD3d 1396, 1397 [4th Dept 2016], lvdenied 28 NY3d 929 [2016]), and defense counsel was not ineffective for failing to pursue aline of questioning that would have been prohibited (see People v Caban, 5 NY3d 143, 152 [2005]). Moreover, defensecounsel elicited testimony from five other witnesses and defendant himself about the victim'sreputation in the community for being untruthful (see People v Pavao, 59 NY2d 282, 290[1983]), and defendant failed "to demonstrate the absence of strategic or other legitimateexplanations for [defense] counsel's failure" to vigorously cross-examine the victim aboutcollateral matters (People v Rivera, 71 NY2d 705, 709 [1988]; see also People v Carver, 27 NY3d418, 420 [2016]). Specifically, the victim's testimony on direct examination was compellingand convincing, and defense counsel may have wanted to avoid the appearance of badgering aseven-year-old and thereby alienating the jury from his client.
Defendant further contends that defense counsel was ineffective for failing to correct oncross-examination the testimony of a detective about the results of DNA testing on items ofclothing taken from defendant's trailer. We reject that contention. The People did not elicit anytestimony from the detective on direct examination about the results of DNA testing and, oncross-examination, without referencing any particular laboratory report, defense counsel elicitedtestimony from the detective that the victim's DNA was not found on any clothingobtained from defendant's trailer, and that the DNA material that was found on defendant'sclothing could have belonged to his new girlfriend. Thus, the detective's testimony regarding theDNA evidence was favorable to defendant and "there is no 'reasonable likelihood that the[alleged] error [by defense counsel] changed the outcome of the case' " (People v Sinclair, 90 AD3d 1518,1518 [4th Dept 2011], lv denied 18 NY3d 962 [2012]). Furthermore, inasmuch as thePeople did not introduce testimony from the detective regarding any out-of-court statement,testimonial in nature, that accused defendant of anything, defendant's constitutional right toconfront adverse witnesses was not violated by the detective's testimony (see generallyMelendez-Diaz v Massachusetts, 557 US 305, 309-311 [2009]; People v John, 27 NY3d 294,303-308 [2016]), and defense counsel was not ineffective for failing to object thereto.
We reject defendant's contention that counsel was ineffective for failing to lay a properfoundation for the admission in evidence of posts from the Facebook page of the victim's motherthat contained sexually suggestive images and innuendo. Defense counsel attempted to introducethe Facebook posts under the theory that, if the victim had seen her mother's postings,those postings could have provided a source, other than defendant, for the child's knowledge ofsexual matters, and the record establishes that the court excluded the Facebook posts on theground that they were not relevant to the issues at trial, and not on the ground that the evidencelacked a proper foundation. Moreover, we conclude that the material was properly excluded onthe ground that it was not relevant inasmuch as the Facebook posts did not depict or describegenitalia or sexual acts, and defendant's suggestion that they could have provided the victim witha basis of knowledge for her accusations against him is " 'too remote orspeculative' " (People vJohnson, 109 AD3d 1187, 1188 [4th Dept 2013], lv denied 22 NY3d 1041[2013]; see generally People v Carroll, 95 NY2d 375, 385 [2000]; People v Odom, 53 AD3d 1084,1087 [4th Dept 2008], lv denied 11 NY3d 792 [2008]). Thus, inasmuch as the evidencewas not excluded on the ground that it lacked a proper foundation, defense counsel was notineffective for failing to lay a proper foundation for that evidence. Viewing the evidence, the lawand the circumstances of the case in totality and as of the time of the representation, we concludethat defendant received meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]).
Defendant next contends that he was deprived of a fair trial by several improper evidentiaryrulings by the court. We reject that contention. First, he contends that the court should not haveallowed the doctor who examined the victim to testify about the elasticity of the vagina whileexplaining why young girls who have been sexually abused often have normal physicalexaminations. In response to defense counsel's objections that such testimony was not relevant,the court cautioned the jury that there was no allegation that defendant had penetrated thevictim's vagina. We conclude that the court's prompt curative instruction to the jury provided anadequate remedy to alleviate any potential prejudice that was caused by the doctor's testimony(see People v Dean, 299 AD2d 892, 893 [4th Dept 2002], lv denied 99 NY2d 613[2003]). Moreover, on summation, the prosecutor reiterated to the jury that there was noallegation that defendant had penetrated the victim's vagina and did not mention the doctor'stestimony. Thus, we conclude that any error in allowing that testimony is harmless inasmuch as"the proof of defendant's guilt is overwhelming and there is no significant probability that thejury would have acquitted defendant had the error not occurred" (People v Williams, 25 NY3d 185,194 [2015]; see People v Smith, 289 AD2d 960, 961 [4th Dept 2001], lv denied97 NY2d 761 [2002]; see generally People v Crimmins, 36 NY2d 230, 241-242[1975]).
Defendant failed to preserve for our review his contention that the court improperly admittedin evidence the testimony of the People's expert witness concerning child sexual abuseaccommodation syndrome (see People vEnnis, 107 AD3d 1617, 1618-1619 [4th Dept 2013], lv denied 22 NY3d 1040[2013], denied reconsideration 23 NY3d 1036 [2014]). In any event, the court did notabuse its discretion in permitting the expert's testimony "for the purpose of explaining behaviorthat might be puzzling to a jury" (Peoplev Spicola, 16 NY3d 441, 465 [2011], cert denied 565 US 942 [2011]) inasmuchas the testimony was "general in nature and [did] not constitute an opinion that [the] particularalleged victim [was] credible or that the charged crimes in fact occurred" (Drake, 138AD3d at 1398; see People v Diaz,20 NY3d 569, 575-576 [2013]; cf.People v Ruiz, 159 AD3d 1375, 1376 [4th Dept 2018]).
Contrary to defendant's further contention, the court did not abuse its discretion in allowingthe prosecutor to ask leading questions of the child victim in this sexual abuse case (see People v Boyd, 50 AD3d 1578,1578 [4th Dept 2008], lv denied 11 NY3d 785 [2008]; People v Greenhagen, 78AD2d 964, 966 [4th Dept 1980], lv denied 52 NY2d 833 [1980]). Additionally, evenassuming, arguendo, that, as defendant contends, two of the questions asked of the People'sexpert witness on direct examination were leading questions, "the decision 'whether to permit theuse of leading questions on direct examination is a matter within the sound discretion of the trialcourt and will not be disturbed absent a clear demonstration of an abuse of discretion' "(People v Martina, 48 AD3d1271, 1272 [4th Dept 2008], lv denied 10 NY3d 961 [2008]; see JeromePrince, Richardson on Evidence § 6-232 [Farrell 11th ed 1995]), and we perceiveno abuse of discretion here.
Defendant next contends that he was deprived of a fair trial by instances of misconduct bythe prosecutor. Contrary to defendant's contention, "[i]nasmuch as defendant's testimony duringboth direct and cross-examination clearly suggested that the People's witnesses had fabricatedtheir testimony, it was not improper for the prosecutor to ask him whether be believed that thePeople's witnesses had lied during their testimony" (People v Head, 90 AD3d 1157, 1158 [3d Dept 2011]; see People v Buel, 53 AD3d 930,932 [3d Dept 2008]; People v Allen,13 AD3d 892, 897 [3d Dept 2004], lv denied 4 NY3d 883 [2005]).
Defendant did not preserve for our review his contention that the prosecutor made impropercomments during summation (seePeople v Reyes, 144 AD3d 1683, 1686 [4th Dept 2016]; People v Lewis, 140 AD3d 1593,1595 [4th Dept 2016], lv denied 28 NY3d 1029 [2016]). In any event, evaluating theprosecutor's comments on summation "in light of the defense summation" (People vHalm, 81 NY2d 819, 821 [1993]), we conclude that the prosecutor's comments "constitutedfair comment on the evidence . . . as well as fair response to the summation ofdefense counsel" (People v Jackson,141 AD3d 1095, 1096 [4th Dept 2016], lv denied 28 NY3d 1146 [2017]).
Defendant also failed to preserve for our review his contention that the prosecutordisregarded a court ruling by questioning the detective about defendant's attempt to commitsuicide. At trial, the prosecutor asked the detective to describe defendant's demeanor at the end ofthe interview, and the detective answered that defendant became violent at the end of theinterview and "wanted to harm himself." Defense counsel objected "to anything beyond that line"and the court obliged, prohibiting the prosecutor from asking "anything beyond that." Inasmuchas the court granted the relief requested by defendant and he did not seek further relief, such asstriking from the record the prosecutor's question and the detective's answer or a curativeinstruction, defendant's contention is unpreserved for our review (see People v Goley, 113 AD3d1083, 1084 [4th Dept 2014]). We note in any event that, although the court ruled at theHuntley hearing that the People would not be permitted to play for the jury that portion ofa video recording of the interview in which defendant attempted to take his own life, the courtindicated that it would not preclude the People from eliciting testimony from the detectiveregarding her observations of defendant. Thus, the record establishes that the prosecutor did notdisregard a prior court ruling and did not exceed the bounds of legitimate advocacy (cf.People v Rosa, 108 AD2d 531, 539 [1st Dept 1985]). Defense counsel was therefore notineffective for failing to object to the alleged instances of prosecutorial misconduct (see generally People v Lowery, 158AD3d 1179, 1180 [4th Dept 2018], lv denied 31 NY3d 1119 [2018]; People v Black, 137 AD3d 1679,1681 [4th Dept 2016], lv denied 27 NY3d 1128 [2016], denied reconsideration 28NY3d 1026 [2016]).
Finally, the sentence is not unduly harsh or severe. Present—Whalen, P.J., Centra,Peradotto, Curran and Winslow, JJ.