| People v Hymes |
| 2019 NY Slip Op 05441 [174 AD3d 1295] |
| July 5, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Justin Hymes, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Nathaniel V. Riley of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), renderedApril 29, 2016. The judgment convicted defendant, upon a jury verdict, of predatory sexualassault against a child and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofpredatory sexual assault against a child (Penal Law § 130.96) and endangering thewelfare of a child (§ 260.10 [1]). Defendant contends that he was denied hisAntommarchi right to be present during material sidebar conferences (see People vAntommarchi, 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]). CountyCourt advised defendant at the start of jury selection that he had an absolute right to be present atthe sidebar conferences, and defendant said that he would invoke that right. Nevertheless, he didnot accompany his counsel during the first sidebar conference and, when the court asked defensecounsel if defendant wished to be present, counsel stated that defendant waived his right to bepresent. The record shows that defendant was not present during some additional sidebarconferences. It is well settled that "a lawyer may waive the Antommarchi right of his orher client" (People v Flinn, 22NY3d 599, 602 [2014], rearg denied 23 NY3d 940 [2014]; see People v Velasquez, 1 NY3d44, 49 [2003]). Furthermore, defendant also implicitly waived those rights by choosing notto accompany his counsel during the sidebar conferences after being advised that he had theabsolute right to attend them (see Flinn, 22 NY3d at 601; People v Williams, 15 NY3d 739,740 [2010]; People v Tortorice, 136AD3d 1284, 1284-1285 [4th Dept 2016], lv denied 27 NY3d 1140 [2016]). Wetherefore conclude that defendant's contention is without merit.
Defendant next contends that the victim testified regarding an uncharged crime and that thecourt should have given an appropriate Molineux limiting instruction. Specifically,defendant contends that the first four counts of the indictment alleged anal and oral sexualconduct and not any vaginal contact and, therefore, when the victim testified that she awoke onetime to find defendant "on top of [her]," she gave testimony of an uncharged crime. Contrary todefendant's contention, the testimony was not Molineux evidence but, rather, wastestimony that defendant engaged in sexual contact with the victim to support the fifth count ofthe indictment charging endangering the welfare of a child. Defendant's further contention thatadmission of that evidence resulted in the jury convicting him of endangering the welfare of achild based on an uncharged theory is also without merit. For that charge, the indictment statedthat defendant "engaged in a course of conduct which included sexual contact with [the victim]."The bill of particulars did not narrow the scope of the alleged sexual contact with respect to thatcharge (cf. People v Graves, 136AD3d 1347, 1349-1350 [4th Dept 2016], lv denied 27 NY3d 1069 [2016]; see generally People v Bradley, 154AD3d 1279, 1280 [4th Dept 2017]). The language in the indictment and bill of particularswas therefore broad enough to encompass all the sexual contact as testified to by the victim.
We reject defendant's contention that the court erred in failing to suppress his statements.Viewing "the totality of the circumstances surrounding the confession," we agree with the courtthat defendant's statements were voluntary and not the product of coercion (People v Deitz, 148 AD3d 1653,1653 [4th Dept 2017], lv denied 29 NY3d 1125 [2017] [internal quotation marksomitted]; see generally People vThomas, 22 NY3d 629, 641-642 [2014]). Further, any alleged deception was not "sofundamentally unfair as to deny [defendant] due process" (People v Clyburn-Dawson, 128 AD3d 1350, 1351 [4th Dept 2015],lv denied 26 NY3d 966 [2015] [internal quotation marks omitted]).
Viewing the evidence in the light most favorable to the People (see People v Contes,60 NY2d 620, 621 [1983]), we reject defendant's contention that the evidence is legallyinsufficient (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Further, uponviewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
Defendant further contends that certain testimony was improperly admitted because itbolstered the victim's testimony regarding the abuse, and the court failed to issue an appropriatelimiting instruction. By way of background, defendant was accused of engaging in anal sexualconduct with the victim in 2009. Shortly after it occurred, the victim disclosed the abuse to heraunt, who did not believe her. In 2014, the victim disclosed the abuse to a school socialworker/counselor but, when interviewed by the police, the victim denied that any abuse occurred.In 2015, however, the victim reported to the police that the incident had occurred, and defendantwas arrested.
The People moved in limine to introduce the 2009 disclosure to the aunt on the ground thatsuch testimony was admissible as a prompt outcry. In a letter decision, the court ruled that itwould allow such testimony. The court further held that, with respect to disclosures that thevictim made in 2014, the People could elicit testimony "about the timing of the [victim's]revelations for the purpose of explaining the events kicking off the investigative process that ledto the charges against the defendant." Finally, the court held that, "[i]f the aunt testifies inthat regard," she would not be allowed to recite precise details of the disclosure, but couldexplain what actions she took as a result. The court indicated that it would issue an appropriatelimiting instruction regarding "[t]he aunt's testimony on that subject" (emphasis added).At the start of the trial, defense counsel informed the court that he recalled that the 2014disclosure was made at the victim's school, and the aunt was made aware of that disclosure.Defense counsel asked for clarification as to the court's final reference to the aunt's testimony,and the court responded that it had been referencing the 2014 disclosure.
At trial, the victim testified that defendant sexually abused her in the spring of 2009 and thatshe immediately told her aunt about the abuse. After the victim testified to another incidentwhere defendant had sexually abused her that occurred around that same time, the prosecutorasked the victim if she told anyone "after that about that time." The victim respondedaffirmatively, that she told "my Aunt. I told [the school social worker/counselor]. I told aDetective. I told my Dad, my Step-Mom, and then my two Step-Sisters." It appeared fromsubsequent testimony that the disclosure to the school social worker/counselor was made in2014. The victim explained that, after telling the school social worker/counselor, she met with apolice officer and someone from Child Protective Services. She further testified, however, thatbecause her aunt told her not to "run [her] mouth," the victim "took [the allegation] back" whenshe talked to the officer in 2014. The aunt testified that the victim disclosed the abuse to her inthe spring of 2009, and the aunt spoke with detectives in 2014 and 2015 regarding the victim'sallegations. The detective who interviewed the victim in 2015 also testified at trial and explainedthat the victim made certain disclosures to him. Notably, there was no testimony from the victim,her aunt, or the detective regarding the specifics of the victim's disclosures.
Defendant first contends that the court erred in permitting the People to elicit testimonyregarding the victim's disclosures of abuse. We reject that contention. "While it is generallyimproper to introduce testimony that the witness had previously made prior consistent statementsto bolster the witness's credibility, the use of prior consistent statements is permitted todemonstrate a prompt outcry, rebut a charge of recent fabrication, or to assist in explaining theinvestigative process and completing the narrative of events leading to the defendant's arrest" (People v Honghirun, 29 NY3d284, 289 [2017] [internal quotation marks omitted]). With respect to the testimony regardingthe victim's disclosure in 2009, that was admissible under the prompt outcry exception (seePeople v McDaniel, 81 NY2d 10, 16 [1993]). With respect to the testimony regarding thevictim's disclosures in 2014 and 2015, that was admissible to explain the investigative processand complete the narrative of the events leading to defendant's arrest (see People v Ludwig, 24 NY3d221, 231-232 [2014]; People vCullen, 24 NY3d 1014, 1016 [2014]). The testimony of the victim, her aunt, and thedetective therefore fell squarely within the above exceptions and did not constitute improperbolstering.
Although defendant recognizes the above exceptions to the rule against improper bolstering,he contends that the People indicated that they would introduce testimony regarding the 2009disclosure only, and he was unfairly surprised by the testimony of the 2014 and 2015 disclosures.He further contends that the People went beyond the court ruling by introducing testimonyregarding the 2015 disclosures. Those contentions are raised for the first time on appeal and aretherefore unpreserved for our review (see CPL 470.05 [2]). In any event, we concludethat they are without merit. The court in its letter ruling clearly stated that any disclosures in 2014would be admissible to explain the investigative process, and we therefore disagree withdefendant that he was unfairly surprised by the testimony regarding those disclosures. The 2015disclosure arguably went beyond the ruling of the court, but that testimony was connected withthe testimony regarding the 2014 disclosure and also relevant and admissible to explain theinvestigative process (see Ludwig, 24 NY3d at 231-232).
Defendant next contends that the court erred in failing to give a limiting instruction withrespect to the 2014 and 2015 disclosures despite the court's promise to do so. We conclude thatdefendant's contention is not preserved for our review inasmuch as he never objected to thecourt's failure to give that instruction (see CPL 470.05 [2]; People v De La Cruz, 44 AD3d346, 347-348 [1st Dept 2007], lv denied 9 NY3d 1005 [2007]; People vHentley, 155 AD2d 392, 394 [1st Dept 1989], lv denied 75 NY2d 919 [1990]). Wedecline to exercise our power to review the contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]; see generally People v Williams, 107 AD3d 1516, 1516 [4th Dept2013], lv denied 21 NY3d 1047 [2013]).
Defendant also contends that defense counsel was ineffective in failing to object to thealleged bolstering testimony and failing to object to the court's failure to give a limitinginstruction with respect to the 2014 and 2015 disclosures. To the extent that defendant contendsthat he was denied effective assistance of counsel based on counsel's failure to object to thetestimony, we conclude that it is without merit inasmuch as any such objection would have beenunsuccessful (see People v Reed,151 AD3d 1821, 1822 [4th Dept 2017], lv denied 30 NY3d 952 [2017]). Asexplained above, the testimony did not constitute improper bolstering. With respect to counsel'sfailure to object to the court's failure to give a limiting instruction, that also did not constituteineffective assistance of counsel (seePeople v Gross, 26 NY3d 689, 696 [2016]). It is well settled that "a defendant mustdemonstrate the absence of strategic or other legitimate explanations for counsel's allegedshortcomings" (Honghirun, 29 NY3d at 289 [internal quotation marks omitted]). Therewere only two witnesses who gave testimony regarding the victim's disclosures in 2014 and2015, and neither gave specifics about what was said to them. After hearing their testimony,counsel may have reasonably believed that a limiting instruction was not needed inasmuch astheir testimony was only to show how the investigation began, and counsel could have concludedthat the jury did not need a specific instruction on that. In rejecting our reliance uponGross, the dissent concludes that there could have been no tactical basis for counsel'salleged error, citing People v Jarvis(113 AD3d 1058, 1059-1060 [4th Dept 2014], affd 25 NY3d 968 [2015]), a casewhere the defense counsel successfully sought to preclude testimony yet failed to object when itwas later introduced. In this case, however, although the court indicated that it would issue alimiting instruction on the testimony, counsel had never requested such a limiting instruction inthe first instance. In addition, defense counsel was not successful in his opposition to thePeople's motion seeking to introduce that testimony. Viewing the evidence, the law, and thecircumstances of this case in their totality at the time of the representation, we conclude thatcounsel provided meaningful representation (see generally People v Baldi, 54 NY2d 137,147 [1981]).
Finally, the sentence is not unduly harsh or severe.
All concur except Smith, J.P., and Curran, J., who dissent and vote to reverse in accordancewith the following memorandum.
Smith, J.P., and Curran, J. (dissenting). We conclude that defendant was deprived of a fairtrial when County Court, despite stating that it would give a limiting instruction regarding theproper use of certain testimony that would otherwise constitute bolstering, failed to provide thatinstruction. We further conclude that defendant was deprived of effective assistance of counselby his attorney's failure to object to that error. Therefore, we respectfully dissent.
Initially, we agree with the majority's resolution of defendant's contentions concerningPeople v Antommarchi (80 NY2d 247 [1992], rearg denied 81 NY2d 759 [1992])and People v Molineux (168 NY 264 [1901]); his assertion that he was convicted ofendangering the welfare of a child based on an uncharged theory; and his challenges to theadmissibility of his statements to the police, to the sufficiency and weight of the evidence, and tothe severity of his sentence. Nevertheless, we also conclude that, inasmuch as the evidence is notoverwhelming and is based almost entirely on the testimony of the victim, who admittedlyrecanted several times and gave numerous versions of the events, a new trial is required due tothe court's failure to give an instruction regarding the proper use of the bolstering testimony andcounsel's failure to object to that error.
Prior to trial, the People moved in limine for permission to introduce evidence that the victimreported an incident of sexual contact with defendant to her aunt in 2009, and that she againdisclosed the incident in 2014. The court concluded that the People could introduce evidence thatthe victim made a prompt complaint in 2009 if they laid a proper foundation establishing that thecomplaint was made at the first suitable opportunity, and that they could introduce evidence thatthe victim reported the contact in 2014 for the sole purpose of establishing how the investigativeprocess began at that time. The court indicated that it would provide an appropriate limitinginstruction if the evidence was introduced.
At trial, the People introduced evidence that the victim reported the sexual contact to heraunt in 2009 and to several other people at various times in 2014 and 2015. Nevertheless, thecourt did not give a limiting instruction either when the testimony was given or at the end of thecase. Although we agree with the majority that defendant failed to preserve for our review hiscontention that the court erred in failing to give the promised charge, we conclude that defendantwas deprived of a fair trial by that error, and we would exercise our power to review thatcontention as a matter of discretion in the interest of justice.
It is well settled that nonspecific testimony about a child victim's report of sexual abuse doesnot " 'improperly bolster[ ] the victim's version of events [when] admitted not for its truthbut for the narrow purpose of explaining an officer's actions and the sequence of events in aninvestigation, and the testimony is accompanied by an appropriate limiting instruction' "(People v Ludwig, 24 NY3d221, 231-232 [2014]). Here, however, the prosecutor repeatedly commented in summationthat the testimony should be taken as evidence of the truth of the victim's testimony, stating atone point that the victim "retelling that story over and over corroborates her [story]." Althoughdefendant does not argue that the prosecutor made improper comments during summation, thosecomments exacerbated the prejudice caused by the court's failure to give the promised limitinginstruction, and they demonstrate that the evidence was not utilized for the appropriate limitedpurpose. Thus, we conclude "that the court erred in failing to issue a limiting instruction to thejury when the evidence was admitted and during the final jury charge, to minimize the prejudicialeffect of the admission of the evidence" (People v Presha, 83 AD3d 1406, 1407 [4th Dept 2011]). "In a casesuch as this, where the finding of guilt rests squarely on the jury's assessment of the credibility ofthe victim . . . , we cannot say that the error was harmless and did not affect thejury's verdict" (People v Greene, 306 AD2d 639, 643 [3d Dept 2003], lv denied100 NY2d 594 [2003]; see Presha, 83 AD3d at 1407). The majority's reliance uponLudwig and People vHonghirun (29 NY3d 284 [2017]) is unavailing inasmuch as, in both of those cases, thecourt gave limiting instructions regarding the use of the testimony. Indeed, in Honghirun,the court "twice instructed the jury during the [witness's] recitation of the victim's statements thatthe evidence was not admitted for its truth" (29 NY3d at 287-288), and gave further limitinginstructions in the final charge (id. at 288).
We also agree with defendant's additional contention that he was deprived of effectiveassistance by his attorney's failure to object the court's failure to give the promised limitinginstruction. The majority concludes that defense counsel's failure to preserve that issue does notrise to the level of ineffective assistance, citing People v Gross (26 NY3d 689, 696 [2016]). We respectfullydisagree. In Gross, the majority of the Court of Appeals concluded that defense counselmay not have objected to the prosecutor's comments on the evidence for tactical reasons. Here,there was no possible tactical basis for "defense counsel's inexplicable failure to object" when thecourt failed to give the promised limiting instruction (People v Jarvis, 113 AD3d 1058, 1059 [4th Dept 2014],affd 25 NY3d 968 [2015]).
We would therefore reverse the judgment and grant a new trial on counts one and five of theindictment. Present—Smith, J.P., Centra, DeJoseph, Curran and Winslow, JJ.