| People v Horton |
| 2020 NY Slip Op 01530 [181 AD3d 986] |
| March 5, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey L. Horton, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
Matthew Van Houten, District Attorney, Albany (Andrew J. Bonavia of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the Supreme Court (Cassidy, J.), renderedNovember 9, 2018 in Tompkins County, upon a verdict convicting defendant of thecrimes of burglary in the first degree, rape in the first degree, criminal sexual act in thefirst degree, aggravated sexual abuse in the third degree, sexual abuse in the first degree,assault in the third degree, stalking in the third degree, stalking in the fourth degree andmenacing in the third degree.
In March 2015, defendant entered the victim's home and subjected her to physicaland sexual assaults. He was tried by a jury and convicted of multiple felonies. Upon hisappeal, this Court reversed and remitted the matter for a new trial (162 AD3d 1118[2018]). Following a second jury trial, defendant was convicted of burglary in the firstdegree, rape in the first degree, criminal sexual act in the first degree, aggravated sexualabuse in the third degree, sexual abuse in the first degree, assault in the third degree,stalking in the third degree, stalking in the fourth degree and menacing in the thirddegree. Supreme Court sentenced defendant to consecutive prison terms of five years onthe conviction for burglary in the first degree, with five years of postrelease supervision,and seven years on the conviction for rape in the first degree, with five years ofpostrelease supervision, and to lesser concurrent terms on the remaining convictions.Defendant appeals.
Defendant asserts that his burglary and assault convictions are against the weight ofthe evidence because the People failed to prove that the victim sustained the requisitephysical injury, and that his sex offense convictions are against the weight of theevidence because the victim's testimony was not credible. The victim testified that shehad ended a romantic relationship with defendant shortly before the attack. In the nextseveral days, defendant called her repeatedly, sent her multiple text messages andappeared at her workplace and in her home, disregarding her repeated requests to leaveher alone. The victim stated that, on the night of the attack, she awoke to find defendantin her bedroom. When she asked what he was doing there, he said that he had enteredthrough a dog door in the attached garage and that she should have locked all of herdoors. He said that he had just wanted to talk to her, complained that she had notanswered his messages, warned her that he had taken two Viagra pills on the way overand said that she was "gonna get it." The victim testified that defendant jumped on top ofher, hit her repeatedly in the face and head and tied her wrists together behind her backwith a nylon rope that had been stored in her laundry room. Thereafter, despite thevictim's protests, he penetrated her vaginally and anally with a vibrator and with hispenis, while threatening to kill her if she tried to fight back. Afterward, according to thevictim, defendant noticed that her face was red and swollen. He became upset, pacedback and forth talking about how to "get out of this," mentioned killing himself, andfinally asked the victim if she would agree to tell no one about the sexual assault if heturned himself in for the physical assault. He untied her and left, saying that he was goingto the police station.
The victim testified that she had not authorized defendant to enter her home and didnot consent to any part of the sexual assault. She reported the physical assault to policeimmediately after the attack and was treated at the emergency room for her physicalinjuries. However, she did not report the sexual assault until a day later. She then gave asecond statement to police and was examined by a sexual assault nurse examiner. Thevictim said that, after the attack, she experienced dizziness, headaches, soreness and painall over her body. Police officers and medical personnel testified that she had significantbruising and swelling on her face, head and other parts of her body, a bite mark on onefinger and ligature marks on one wrist. Photographs depicting these injuries wereadmitted. Her treating physician testified that she diagnosed the victim withpostconcussion syndrome, with symptoms of dizziness, sensitivity to light, headachesand impaired concentration. The victim was prescribed several medications, including apainkiller, and was unable to return to work for more than a month.
Defendant did not testify, but his testimony from the prior trial was admitted intoevidence. In that testimony, he acknowledged that he had entered the victim's homewithout permission, claiming that he had used an unlocked back door. He asserted that,when he first appeared in the bedroom, he and the victim had a calm conversation aboutthe end of their relationship, but that the victim suddenly hit him in the mouth when hemade a comment that upset her. He stated that he "reacted" by backhanding her,straddling her and then "slapp[ing]" her in the head and face for 10 or 15 seconds. Hestated that he pinned her down on the bed, but denied that he tied her wrists. Accordingto defendant, he then attempted to leave, but the victim invited him to stay and have sexwith her, which he did. Thereafter, he left, turned himself in to the police and gave astatement in which he admitted that he had "punched or slapped" the victim. Asubsequent search of his cell phone revealed that he conducted Internet searches forinformation on state laws regarding assault, battery and sodomy, and sent a text messageto his sister directing her not to tell anyone that he and the victim had "made love"because he could be charged with rape.
If the jury had credited defendant's assertions that the victim consented to sexualactivity with defendant and that her injuries were less severe than she claimed, a differentverdict would not have been unreasonable. Thus, this Court must "weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine whether the trier of factaccorded proper weight to the evidence" (People v Cooley, 149 AD3d 1268, 1269 [2017] [internalquotation marks and citation omitted], lv denied 30 NY3d 979 [2017]; seePeople v Bleakley, 69 NY2d 490, 495 [1987]). "The conflicting testimony. . . presented 'a classic he-said she-said credibility determination' for thejury to resolve" (People vKiah, 156 AD3d 1054, 1056 [2017], lv denied 31 NY3d 984 [2018],quoting People v McCray,102 AD3d 1000, 1000 [2013], affd 23 NY3d 193 [2014]). Deferring to thatdetermination and viewing the evidence in a neutral light, we find that the challengedconvictions are not against the weight of the evidence (see People v Horton, 162AD3d at 1119-1120; People vHines, 9 AD3d 507, 511 [2004], lv denied 3 NY3d 707 [2004]).
Supreme Court properly denied defendant's motion in limine seeking to preclude thePeople from eliciting testimony that the victim took measures to improve the security ofher home after the attack. Contrary to defendant's claim, this testimony did not constitutebolstering of any kind (comparePeople v Smith, 22 NY3d 462, 465-466 [2013]; People v Holt, 67 NY2d819, 821 [1986]). The court likewise properly denied defendant's request for records ofthe victim's mental health counseling and her purported history of substance abuse. Whena witness has a history of treatment for a diagnosed mental health condition, in camerareview may be warranted "to determine whether [mental health records] contain relevantand material information bearing on the credibility of the witness that ought to bedisclosed to the defendant" (People v Kiah, 156 AD3d at 1057). However, suchconfidential records are not released "where sought as a fishing expedition searching forsome means of attacking the victim's credibility" (People v McCray, 102 AD3d at1005 [internal quotation marks and citation omitted]; see People v Bowman, 139 AD3d 1251, 1253 [2016], lvdenied 28 NY3d 927 [2016]). Here, defense counsel's speculative assertion that thevictim had a drinking problem based upon her history of a single alcohol-related drivinginfraction, counsel's unspecified investigation of the matter and vague witness testimonyabout occasions when the victim was allegedly intoxicated did not constitute the requisite"factual predicate which would make it reasonably likely that the file [would] bear suchfruit" (People v Gissendanner, 48 NY2d 543, 550 [1979]). Likewise, the victim'sprior testimony that she had seen a free counselor at an advocacy center a few times afterthe incident and had "sought out a specialist, therapist for" what she described as"post-traumatic syndrome," without more, did not establish a reasonable likelihood thatanything in her counseling records would bear on her credibility (see People v Mirabella, 126AD3d 1367, 1368-1369 [2015], lv denied 25 NY3d 1168 [2015]; People v Drake, 19 AD3d209, 210 [2005], affd 7 NY3d 28 [2006]).
In another motion in limine, defense counsel sought to preclude references to the"victim," arguing that they would dilute the presumption of innocence and deprivedefendant of a fair trial. Several New York courts have examined this issue in thespecific context of jury instructions and have held that it is improper for a trial court torefer to a complainant as the "victim" in a jury charge, but that reversal is not requiredunless, taken as a whole, the charge does not otherwise convey the proper standards tothe jury (see People v Davis, 73 AD2d 693, 694 [1979]; compare People v Carpenter,52 AD3d 1050, 1051 [2008], lv denied 11 NY3d 735 [2008], certdenied 556 US 1131 [2009]; People v Johnson, 140 AD2d 954, 954 [1988],lv denied 72 NY2d 920 [1988]; see also People v Brewington, 145 AD2d962, 963 [1988], lv denied 74 NY2d 661 [1989]). It does not appear that anyNew York court has analyzed the issue outside the context of jury instructions, butseveral courts in other jurisdictions have held that the use of the term "victim" by theprosecution or its witnesses should be avoided where, as here, the credibility of thecomplaining witness is in issue, and that facts such as the context and frequency of thereferences and the strength of other evidence should be taken into account in determiningwhether use of the term is reversible error (see e.g. State v Mundon, 129 Haw 1,25-26, 292 P3d 205, 229-230 [2012]; State v Devey, 2006 UT App 219, ¶17-18, 138 P3d 90, 95-96 [2006]; State v Wigg, 179 VT 65, 69-71, 889 A2d 233,236-238 [2005]; Jackson v State, 600 A2d 21, 24-25 [Del Sup Ct 1991]; cf.Friday v State, 2018 Ark 339, at 6-8, 561 SW3d 318, 323 [2018]). Here, althoughSupreme Court denied defendant's application, it also agreed that his concern was"well-grounded" and warned counsel to use caution, stating that "[i]t might call theattorneys over" if a witness repeatedly used terms like "victim" or "assailant," and thatpolice witnesses should not use such terms in such a way as to have an emotional impacton the jury. While we agree with defendant that references to the complaining witness asthe "victim" at trial should be avoided when his or her credibility is in issue, we find noerror in the court's treatment of the issue under the circumstances presentedhere.[FN1]
Supreme Court properly denied defendant's pretrial motion to compel the People toturn over the victim's cell phone based upon an agreement that he alleged had beenreached before defendant's first trial, by which the People would preserve the phone inexchange for defendant's waiver of a preliminary hearing.[FN2] Defendant supported the existence ofthe claimed agreement by submitting a March 2015 letter in which his former counselrepresented in Town Court that the People had agreed to join in a motion to preserve"certain short message service (sms) evidence" through a temporary restrainingorder.[FN3]Notably, this letter neither mentions the victim's cell phone nor specifies that themessages to be preserved were the victim's, and defendant's preliminary hearing waiverprovides only that the People agreed to provide "any discovery that would be availablepursuant to [CPL article 240]." Defendant's former counsel submitted an affidavit statingthat it was his "understanding" that the agreement included the preservation of thevictim's phone for his inspection. However, the Court of Appeals has held in anothercontext that a trial court "must be entitled to rely on the record to ascertain whether anypromises, representations, implications and the like were made to the defendant"(People v Frederick, 45 NY2d 520, 525 [1978]). Here, in the absence of anycontemporaneous evidence that there was an agreement pertaining to the victim's phone,we agree with Supreme Court that defendant did not prove its existence.
Contrary to defendant's argument, Supreme Court properly denied his motion tostrike the People's amended bill of particulars. Defendant had filed a demand for a bill ofparticulars before the first trial seeking, among other things, the alleged method andmeans by which he had entered the victim's home; the People had responded thatdefendant had entered through a dog door in the garage. At the first trial, defendantinstead testified that he entered through an unlocked back door. Several days before thesecond trial, the People filed an amended bill of particulars modifying their previousresponse, averring that they had no obligation to provide proof of how they intended toprove an element of an offense. Defendant moved to strike the amended bill ofparticulars on the ground that the People should be held to their prior theory ofprosecution. In denying the motion, Supreme Court found that defendant had admittedthat he entered the home without permission, that he was aware that the People no longerintended to prove that he had used the dog door to do so, and that the amendment did notchange the theory of the case or cause any prejudice.
By statute, the People are free to file an amended bill of particulars at any time beforea defendant's trial (see CPL 200.95 [8]). Nevertheless, defendant argues that theamendment here was impermissible because it constructively amended the indictment inviolation of CPL 200.70 (2), which provides that "[a]n indictment may not be amendedin any respect which changes the theory or theories of the prosecution as reflected in theevidence before the grand jury which filed it." However, "[i]t is well settled that theprosecution need not prove allegations in an indictment that are extraneous to thematerial elements of the offense charged" (People v Osinowo, 28 AD3d 1011, 1013 [2006] [internalquotation marks and citation omitted], lv denied 7 NY3d 792 [2006]; seePeople v Rooney, 57 NY2d 822, 823 [1982]; People v Hilliard, 49 AD3d 910, 913 [2008], lvdenied 10 NY3d 959 [2008]). Burglary in the first degree requires proof that adefendant "knowingly enter[ed] or remain[ed] unlawfully in a dwelling" (Penal Law§ 140.30), but the statute does not provide that the method of entry is amaterial element of the offense, nor has defendant identified any case law precedent tothat effect. Thus, the amendment with respect to this issue did not alter the theory of theprosecution (compare People v Grega, 72 NY2d 489, 498 [1988]; People vJohnson, 227 AD2d 927, 927-928 [1996], lv denied 88 NY2d 1022 [1996]).Moreover, as it was defendant's testimony in the first trial that created the factualdiscrepancy between the proof and the initial bill of particulars, he cannot be heard tocomplain that either the indictment or the amended bill of particulars failed to "fulfill[ ]the statutory and constitutional requirements of due process and fair notice" (People vSpann, 56 NY2d 469, 473 [1982]; see People v Feldman, 50 NY2d 500, 504[1980]; see also People vGriffin, 9 AD3d 841, 842-843 [2004]).
During the trial, a police investigator testified that he had used Cellebrite software toexamine the contents of defendant's cell phone and had prepared an extraction reportlisting, among other things, approximately 2,600 text messages. The People introduced115 of these messages into evidence, exchanged by defendant and the victim betweenMarch 20, 2015 and March 24, 2015, as well as the previously-mentioned text messagefrom defendant to his sister. Defendant then sought to introduce three additional textmessages from the extraction report—another message to his sister, sent on March26, 2015, one sent to a third party on March 25, 2015, and one sent to the victim onMarch 16, 2015. The People objected on hearsay and relevancy grounds, while defendantargued that all of the messages in the extraction report, including these three messages,were admissible under the rule of completeness. We find no error in Supreme Court'srefusal to admit the messages.
The rule of completeness provides that a defendant is entitled to have the entirety ofan admission, statement or recorded conversation, including both inculpatory andexculpatory portions, admitted into evidence, in order to prevent the distortion that mayresult from admitting part of a statement out of context (see People v Dlugash, 41NY2d 725, 736 [1977]; People v Gallo, 12 NY2d 12, 15 [1962]). The rule maybe applied to text messages in appropriate circumstances (see People v Saylor, 173 AD3d1489, 1491 n 2 [2019]; People v Cartagena, 170 AD3d 451, 452 [2019], lvdenied 33 NY3d 1029 [2019]). However, the rule does not mandate the admission ofa text message simply because other text messages from the same phone, sent ondifferent dates and dealing with different subjects, were admitted into evidence. Here, thetext messages that defendant sought to admit were not part of any of the text exchangesthat were admitted into evidence, were made outside the time frame of the admittedmessages, and were not explanatory or exculpatory of anything in the admittedcommunications. Accordingly, the rule of completeness did not require their admission(see State v Savage, 301 Neb 873, 888-889, 920 NW2d 692, 705-706 [2018],mod on rearg 302 Neb 492, 924 NW2d 64 [2019]).
Supreme Court did not abuse its discretion in declining to grant an adjournment topermit defendant to call a witness. The victim testified during her direct examination thatthe rope that defendant used to tie her wrists during the attack had been given to her byher veterinarian for use as a temporary leash. On cross-examination, defense counselasked for the veterinarian's name. The victim stated that she "believe[d]" that she hadbeen given the rope at a certain veterinary practice in the Town of Dryden, TompkinsCounty, but that she did not know the veterinarian's name, as there were multipleveterinarians at that practice. Several days later, defense counsel sought a one-dayadjournment to secure the testimony of a veterinarian who was allegedly the veterinarianmentioned by the victim, and who would allegedly testify that he had no record of havingtreated the victim's dog in his practice.[FN4] Supreme Court denied theadjournment, finding—based upon its own research—that there was noveterinary practice in Dryden with the name provided by the victim and that, because thevictim had expressed doubt about the identity of the veterinarian who had provided therope, her credibility could not be impeached by the testimony of any particularveterinarian.
We agree with defendant that Supreme Court should not have assumed the role ofcounsel by initiating its own investigation into the facts and, further, to the extent that thecourt took judicial notice of the information it discovered, it should have given theparties an opportunity to be heard on the propriety of doing so (see JeromePrince, Richardson on Evidence § 2-202 [Farrell 11th ed 1995]).Nevertheless, even without the information gathered by the court, defendant's contentionis unavailing. When a defendant seeks an adjournment so that a potential witness can beproduced, it is "incumbent upon the defendant to demonstrate, among other things, thatthe witness would furnish testimony that is both material and favorable to the defense"(People v Booker, 141AD3d 834, 835 [2016] [internal quotation marks, brackets and citation omitted],lv denied 28 NY3d 1026 [2016]; see People v Hartman, 64 AD3d 1002, 1003 [2009], lvdenied 13 NY3d 860 [2009]). Here, defendant did not establish that the proposedcollateral testimony would be material or relevant. The victim had testified that therewere multiple veterinarians at the practice, but the veterinarian that defendant sought tocall was the only veterinarian in his practice—a practice with a name onlysomewhat similar to that given by the victim. Defendant thus failed to establish that theveterinarian it sought to call was the same person whom the victim had identified or thathis testimony would be material or relevant, and the court acted within its "sounddiscretion" in denying the adjournment (People v Diggins, 11 NY3d 518, 524 [2008] [internalquotation marks and citation omitted]; see People v Booker, 141 AD3d at835).
Many of the errors that defendant now asserts took place at trial were not preservedfor appellate review by appropriate objections. For example, defendant now argues thatSupreme Court improperly permitted the jury to view digital photographs of the victim'sinjuries during its deliberations because only printed versions of the photographs, and notthe digital versions, were admitted into evidence. At trial, however, defense counselobjected only to the printed photographs on the ground that they were "blurry,"and agreed to the People's proposal to resolve his objection by publishing thephotographs to the jury in digital form on a high-definition television screen, whileadmitting the printed images.[FN5]
Defendant's objections to the jury charge are likewise unpreserved (see generally People v Rice,172 AD3d 1616, 1619 [2019]). Although defendant now contends that SupremeCourt's correction of an erroneous instruction was confusing and that a supplementalinstruction given in response to a jury note had the effect of shifting the burden of proof,defense counsel expressly agreed to both instructions at trial after conferring on theircontent with the court and the prosecutor. Likewise, defendant did not object at trial toSupreme Court's instruction on forcible compulsion. He thus failed to preserve hisappellate contention that the court erred in instructing the jury on both definitions offorcible compulsion—physical force and express or impliedthreats—because, in defendant's view, the indictment charged only physical force(see People v McChesney, 160 AD2d 1045, 1045-1046 [1990]).[FN6] To the extent thatdefendant contends that this failure constituted the ineffective assistance of counsel, wewould have found no merit in this argument if defense counsel had made an appropriateobjection. When the amended bill of particulars and the cross-referenced indictment andsummary of facts are read as a whole, both theories of forcible compulsion are fullypresented (see id. at 1046).
Defendant likewise failed to preserve his appellate argument that the indictmentcounts alleging forcible compulsion are duplicitous because they do not state whether thealleged forcible compulsion consisted of physical force or threats (see People v Becoats, 17 NY3d643, 650-651 [2011], cert denied 566 US 964 [2012]). Defense counsel'sfailure to preserve this issue did not constitute ineffective assistance; there was noduplicity, as the Penal Law provides that the element of forcible compulsion may beproven by either physical force or by express or implied threats and does not establishseparate offenses for these alternate forms of proof (see Penal Law§§ 130.00 [8] [a], [b]; 130.35 [1]; 130.50 [1]; 130.65 [1]; 130.66 [1][a]; compare CPL 200.30 [2]; see generally People v Caban, 5 NY3d 143, 152[2005]).
Defendant's claim that he was deprived of a fair trial by various acts of prosecutorialmisconduct was not preserved by timely, specific objections (see People v Fragassi, 178AD3d 1153, 1156-1157 [2019], lv denied 34 NY3d 1128 [2020]; People vSostre, 172 AD3d 1623, 1626-1627 [2019], lv denied 34 NY3d 938[2019]), but we will examine this assertion as defendant relies on this failure as one ofthe bases for his ineffective assistance claim. The prosecutor did not, as defendantclaims, commit misconduct during jury selection. All of the challenged remarks by theprosecutor during voir dire, read in context, are accurate statements of the law orcorrections of defense counsel's misstatements, and the challenged questions "wereappropriately directed at determining the prospective jurors' views on . . .issues likely to be presented at trial" (People v Guay, 72 AD3d 1201, 1203 [2010], affd18 NY3d 16 [2011]). Remarks in the prosecutor's opening statement about defendant'sconflicting descriptions of the manner of his entry into the victim's house did notdenigrate the defense, but instead accurately stated the law. The record does not supportdefendant's claims that, during the People's case-in-chief, the prosecutor askedimpermissible bolstering questions or elicited improper details in violation of this Court'sdirection on the prior appeal (162 AD3d at 1121). As for the summation, the vastmajority of the remarks that defendant now challenges were fair comments on theevidence or fair responses to the extended attacks on the victim's credibility in defensecounsel's summation (seePeople v Nunes, 168 AD3d 1187, 1193 [2019], lv denied 33 NY3d 979[2019]; People vShamsuddin, 167 AD3d 1334, 1336 [2018], lv denied 33 NY3d 953[2019]). To the extent that a handful of the prosecutor's remarks may have exceeded the"wide latitude" extended to the prosecution in responding to the defense summation (People v Casanova, 119 AD3d976, 977 [2014]), "these isolated comments did not rise to the flagrant and pervasivelevel of misconduct which would deprive defendant of due process or a fair trial" (People v Harris, 162 AD3d1240, 1244 [2018] [internal quotation marks and citations omitted], lvdenied 32 NY3d 937 [2018]; see People v Terry, 85 AD3d 1485, 1487-1488 [2011],lv denied 17 NY3d 862 [2011]). As the prosecutor's conduct was not improper,defense counsel's failure to object did not constitute the ineffective assistance of counsel(see People v Stanford, 130AD3d 1306, 1309 [2015], lv denied 26 NY3d 1043 [2015]; People v Thomas, 105 AD3d1068, 1071-1072 [2013], lv denied 21 NY3d 1010 [2013]).
As for defendant's claim that his counsel improperly failed to object to the admissionof his testimony from the former trial, "[t]o succeed on a claim of ineffective assistanceof counsel, the defendant must show the absence of strategic or other legitimateexplanations for counsel's failure" (People v Houze, 177 AD3d 1184, 1189 [2019] [internalquotation marks and citation omitted]). Even assuming without deciding that—asdefendant now contends—his testimony in the prior trial was inadmissible becauseit was impelled by the People's improper use of his pretrial silence (see Harrison vUnited States, 392 US 219, 222-224 [1968]; People v Horton, 162 AD3d at1121; People v Spencer, 219 AD2d 259, 262-263 [1996], lv denied 88NY2d 1024 [1996]), his trial counsel could reasonably have elected not to oppose itsadmission for strategic reasons. Although defendant now contends that his priortestimony included damaging admissions that he entered the victim's home unlawfully,assaulted the victim and had sexual intercourse with her, defendant had made similaradmissions on the first two points to police and would have faced impeachment had hetestified differently in the second trial. His counsel could have made the strategicdecision that it would be less damaging to permit the admission of known, controlledprior testimony—read into evidence by a prosecutor rather than by defendanthimself—than to risk the unknown consequences of putting defendant on thestand for a second time.
Defendant's claim that his counsel had no recognizable strategy during jury selectionis likewise without merit. "[J]ury selection involves the quintessentially tactical decisionof whether defendant's interests would be assisted or harmed by a particular juror" (People v Molano, 70 AD3d1172, 1176 [2010] [internal quotation marks and citation omitted], lv denied15 NY3d 776 [2010]; accordPeople v Dashnaw, 116 AD3d 1222, 1230 [2014], lv denied 23 NY3d1019 [2014]). Defendant challenges defendant's failure to use peremptory challenges toexcuse three prospective jurors who had personal experience with domestic violence orsexual assault after his challenges for cause were denied. However, in each case, theprospective jurors stated unequivocally that they could be fair and impartial, and defensecounsel could reasonably have made the strategic decision to conserve limited remainingperemptory challenges for prospective jurors whose impartiality was less certain.Notably, defense counsel challenged for cause or consented to the People's challenges tomany other prospective jurors on the panel who stated that they could not be fair andimpartial because of comparable personal experiences.
Defendant next alleges that his counsel failed to object to several instances of allegedimproper testimony. Only one of these alleged failures was addressed in detail in hisbrief; defendant contends that defense counsel improperly failed to object when theprosecutor violated the best evidence rule (see generally Schozer v William Penn LifeIns. Co. of N.Y., 84 NY2d 639, 643 [1994]) by allegedly asking the investigatingpolice officer what a video recording of his interview with the victim would showregarding whether the officer could see a ligature mark on her wrist. Defense counsel'sfailure to object to this testimony did not constitute ineffective assistance, as examinationof the testimony in question reveals that the prosecutor was not asking the investigatorabout the contents of the video recording, but about his own observations of the victim'swrist. Defense counsel's failure to object to certain alleged hearsay testimony did not riseto the level of ineffective assistance, as the testimony was cumulative and the issues notin dispute (see People vSingh, 16 AD3d 974, 977 [2005], lv denied 5 NY3d 769 [2005]), andwe find no merit in defendant's remaining claims of alleged improper testimony. As fordefendant's claim that his counsel's summation was ineffective and prejudicial, it wasreasonable trial strategy for defense counsel to concede that the evidence establisheddefendant's guilt as to certain lesser crimes, while focusing his arguments on thecredibility issues related to the more serious charges (see People v Reyes, 84 AD3d 426, 426-427 [2011], lvdenied 18 NY3d 927 [2012]). We find no merit in defendant's remaining allegationsof ineffective assistance. Defense counsel engaged in extensive motion practice beforeand after the trial, thoroughly cross-examined the People's witnesses, presented witnesseson defendant's behalf, pursued a coherent theory of defense and provided defendant withzealous and meaningful representation (see People v Benevento, 91 NY2d 708,714-715 [1998]).
Mulvey, Aarons, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Significantly, defendantdoes not argue that he was, in fact, deprived of a fair trial by any specific use of the term"victim." Our review reveals that the victim was almost never referred to by that termduring the trial. Supreme Court used the victim's name or called her the "alleged victim,"and the prosecutor and the People's witnesses used her name in almost every instance; thefew exceptions were so minimal in the context of the trial as a whole that we perceive nopossibility that the presumption of innocence was undermined or that defendant wasdeprived of a fair trial.
Footnote 2:Defendant's brief assertsthat the motion sought access to "text messages from the [victim's] phone," but, in fact,the motion sought access to the phone itself.
Footnote 3:The People assert thatthey turned over to defendant more than 2,000 text messages from his phone, many ofwhich were messages between the victim and defendant. The record does not revealwhether these messages were turned over pursuant to the alleged March 2015 agreement.
Footnote 4:Defense counsel assertedthat he had not been able to contact the veterinarian immediately after the victim'stestimony because the trial had kept him too busy during business hours.
Footnote 5:This argument vergesclosely on frivolity. Beyond the fact that defense counsel agreed to the submission, thereis no argument that he was ineffective for making this agreement, no authority cited forthe proposition that photographs admitted in printed form cannot be viewed by the juryin digital form, and no assertion of any resulting prejudice.
Footnote 6:Defense counsel didraise an unsuccessful objection to the forcible compulsion instruction on a differentground, arguing that the instruction should be limited to one specific form of physicalcompulsion—that is, defendant's use of the rope.