| People v Lostumbo |
| 2020 NY Slip Op 02403 [182 AD3d 1007] |
| April 24, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Stanley Lostumbo, Appellant. |
D.J. & J.A. Cirando, PLLC, Syracuse (John A. Cirando of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered October 27, 2015. The judgment convicted defendant upon a nonjuryverdict of sexual abuse in the first degree, unlawful imprisonment in the second degree,intimidating a victim or witness in the third degree and criminal contempt in the seconddegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjurytrial of sexual abuse in the first degree (Penal Law § 130.65 [1]), unlawfulimprisonment in the second degree (§ 135.05), intimidating a victim orwitness in the third degree (§ 215.15 [1]), and two counts of criminalcontempt in the second degree (§ 215.50 [3]). We affirm.
We reject defendant's contention that Supreme Court erred in denying his motion todismiss the indictment on the ground that the People did not provide him with reasonablenotice of the grand jury proceedings pursuant to CPL 190.50 (5) (a) (see generallyCPL 190.50 [5] [c]). "CPL 190.50 (5) (a) does not mandate a specific time period fornotice; rather, 'reasonable time' must be accorded to allow a defendant an opportunity toconsult with [defense] counsel and decide whether to testify before a [g]rand [j]ury"(People v Sawyer, 96 NY2d 815, 816 [2001], rearg denied 96 NY2d 928[2001]; see People vGelling, 163 AD3d 1489, 1491 [4th Dept 2018], amended on rearg on othergrounds 164 AD3d 1673 [4th Dept 2018], lv denied 32 NY3d 1003 [2018]).Here, the record establishes that the People orally gave defendant and his attorneyapproximately five days' notice that the matter would be presented to the grand jury,which constituted reasonable notice under these circumstances (see People v Ballard, 13 AD3d670, 671 [3d Dept 2004], lv denied 4 NY3d 796 [2005]; People vPugh, 207 AD2d 503, 503 [2d Dept 1994]). Additionally, the written notice providedby the People to defense counsel approximately 1
Defendant's contention that the evidence is legally insufficient to support hisconviction of sexual abuse in the first degree, unlawful imprisonment in the seconddegree, and intimidating a victim or witness in the third degree is unpreserved because hedid not renew his motion for a trial order of dismissal at the close of his case (seePeople v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001];People v Morris, 126 AD3d1370, 1371 [4th Dept 2015], lv denied 26 NY3d 932 [2015]). We furtherconclude that, viewing the evidence in light of the elements of those crimes in thisnonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), the verdict convicting him of those crimesis not against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]; Peoplev Nicholas, 130 AD3d 1314, 1315 [3d Dept 2015]). We reject defendant'scontention that the victim's trial testimony was incredible as a matter of law due to herpast drug use and failure to remember the specific date of one of the alleged incidents (see People v Saxe, 174 AD3d958, 959-960 [3d Dept 2019]; People v Edwards, 159 AD3d 1425, 1426 [4th Dept 2018],lv denied 31 NY3d 1116 [2018]; People v Barnes, 158 AD3d 1072, 1072 [4th Dept 2018],lv denied 31 NY3d 1011 [2018]). Her testimony merely "presented issues ofcredibility for the factfinder to resolve" (People v Williams, 179 AD3d 1502, 1503 [4th Dept2020]), and we see no reason to disturb the court's credibility determinations here.
Defendant's contention that the court rendered its verdict based on improper legalcriteria is unpreserved because he did not object to the court's alleged error or raise thatcontention in his CPL 330.30 motion (see CPL 470.05 [2]; People vBridenbaker, 266 AD2d 875, 875 [4th Dept 1999], lv denied 94 NY2d 917[2000]). Defendant's contention that he was deprived of a fair trial by instances ofprosecutorial misconduct is also unpreserved because defendant did not object to any ofthose alleged instances at trial (see People v Simmons, 133 AD3d 1227, 1228 [4th Dept2015]; People v Easley, 124AD3d 1284, 1285 [4th Dept 2015], lv denied 25 NY3d 1200 [2015]). Wedecline to exercise our power to review those contentions as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
We reject defendant's further contention that he was deprived of effective assistanceof counsel based on several acts or omissions on the part of defense counsel throughoutthe underlying proceedings. With respect to defendant's claim that defense counsel wasineffective for purportedly failing to facilitate defendant's testimony before the grandjury, defendant did not establish that he was prejudiced by that purported failure or thatthe outcome would have been different if he had testified (see People v Robinson, 151AD3d 1701, 1701 [4th Dept 2017], lv denied 29 NY3d 1133 [2017]). Tothat end, we note that defendant did testify at trial and was nonetheless found guilty (see People v Hogan, 26 NY3d779, 787 [2016]).
Additionally, defense counsel was not ineffective in failing to request a mistrialbased on the admission of certain prejudicial phone calls between defendant and thevictim. At a bench trial, the "court is presumed capable of disregarding the prejudicialaspect of the evidence" admitted therein (People v Tong Khuu, 293 AD2d 424,425 [1st Dept 2002], lv denied 98 NY2d 714 [2002]), and here the courtspecifically disregarded the prejudicial parts of the calls and chastised the People forplaying those parts of the calls. Moreover, defense counsel's failure to move for a mistrialbased on admission of that evidence did not render him ineffective because such amotion would have had " 'little or no chance of success' " (People v Caban, 5 NY3d143, 152 [2005]; seegenerally People v Alexander, 109 AD3d 1083, 1085 [4th Dept 2013]). Defensecounsel was also not ineffective in failing to object to alleged hearsay testimony of thevictim because any error caused by its introduction—which the court is presumedto have disregarded—was harmless (see People v Pabon, 126 AD3d 1447, 1448 [4th Dept2015], affd 28 NY3d 147 [2016]).
Defendant further contends that defense counsel was ineffective in failing to obtaindeleted text messages between defendant and the victim. We reject that contentionbecause the text messages were of minimal "exculpatory value" (People v Mitchell, 34 AD3d358, 359 [1st Dept 2006], lv denied 8 NY3d 988 [2007]). Moreover, to theextent that those messages could have been used during cross-examination to impeachthe victim regarding her potential motives to fabricate accusations against defendant,defense counsel was able to elicit information concerning those motives even without thetext messages. Therefore, defendant was not prejudiced by defense counsel's failure toobtain those messages at trial (see People v Castleberry, 265 AD2d 921, 921-922[4th Dept 1999], lv denied 94 NY2d 902 [2000]).
With respect to defendant's final claim concerning ineffective assistance of counsel,we conclude that he was not denied effective assistance due to defense counsel's failureto preserve defendant's challenge to the legal sufficiency of the evidence inasmuch asthat "challenge[ ] would not have been meritorious" (People v Person, 153 AD3d 1561, 1563-1564 [4th Dept2017], lv denied 30 NY3d 1118 [2018]).
We further reject defendant's contention that the court erred in denying his CPL330.30 motion to set aside the verdict on the ground of newly discovered evidence. Therelevant evidence—i.e., deleted text messages between defendant and thevictim—was not newly discovered evidence inasmuch as defendant knew aboutthose messages prior to trial, and there was no evidence that defendant was unable toproduce the messages "at the trial even with due diligence on his part" (CPL 330.30[3]; see People v Brown,104 AD3d 1203, 1204 [4th Dept 2013], lv denied 21 NY3d 1014 [2013]; cf. People v Bailey, 144 AD3d1562, 1564 [4th Dept 2016]). Moreover, we conclude that the text messages couldbe used merely to impeach or contradict the victim's testimony, and defendant failed toestablish that admission of those messages would have created the probability of a morefavorable verdict (see Brown, 104 AD3d at 1204; see generally CPL330.30 [3]; People v Salemi, 309 NY 208, 215-216 [1955], cert denied350 US 950 [1956]).
Finally, we conclude that the sentence is not unduly harsh or severe.Present—Whalen, P.J., Curran, Winslow and Bannister, JJ.