| People v Maisonette |
| 2021 NY Slip Op 01528 [192 AD3d 1325] |
| March 18, 2021 |
| Appellate Division, Third Department |
[*1](March 18, 2021)
| The People of the State of New York,Respondent, v Joenathan Maisonette, Appellant. |
Adam G. Parisi, Schenectady, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, P.J. Appeals (1) from a judgment of the Supreme Court (Milano, J.), rendered August11, 2016 in Schenectady County, upon a verdict convicting defendant of the crimes of criminalsexual act in the first degree and rape in the first degree, and (2) from an amended order of saidcourt, entered May 16, 2019 in Schenectady County, which denied defendant's motion to, amongother things, settle the record.
Defendant was charged by a four-count indictment with crimes related to his sexual abuse ofan 11-year-old child (hereinafter the victim). At trial, Supreme Court dismissed one count, andthe jury acquitted defendant of another count but convicted him of criminal sexual act in the firstdegree and rape in the first degree. The court sentenced him to two consecutive prison terms of20 years, followed by 20 years of postrelease supervision. Defendant appeals from the judgmentof conviction. Defendant later moved to settle the record on appeal and for a reconstructionhearing on the grounds that there were various alleged omissions and alterations to thetranscripts. Defendant also appeals from Supreme Court's denial of that motion.
"Parties to an appeal are entitled to have that record show the facts as they really happened attrial, and should not be prejudiced by an error or omission of the stenographer" (People v Bethune, 29 NY3d 539,541 [2017] [citation omitted]), but "not every dispute about the record mandates a reconstructionhearing" (id. at 542 [internal quotation marks, brackets, emphasis and citation omitted])."Reconstruction hearings may be appropriate where it is clear that a proceeding took place thatwas not transcribed; the trial court refused to record the proceedings; the minutes have been lost;or there is significant ambiguity in the record" (People v Velasquez, 1 NY3d 44, 49 [2003] [citations omitted]).Despite defendant's arguments, none of these situations exists here; defendant merely asserts thatthe transcribed record omits some statements that he allegedly made at various times. However,the transcripts show that sometimes defendant began making the statements he alleged but wascut off by Supreme Court or advised not to speak. Thus, a reconstruction hearing would not behelpful, as the record makes clear that the statements were not omitted but, rather, the courtprevented defendant from making such statements because he was represented by counsel, or itwas an inappropriate time. It appears that the transcripts are generally accurate, defendantpresented only his own affidavit to support his assertion that the alleged statements were made,and any missing words do not affect this Court's ability to resolve the appeal. Accordingly, asdefendant failed to establish entitlement to a reconstruction hearing, the court did not err indenying defendant's motion (see Peoplev Bennett, 165 AD3d 1624, 1625 [2018]; compare People v Johnson, 175 AD3d 14, 19 [2019]).
In challenging the weight of the evidence, defendant [*2]primarily contends that the victim's testimony was incredible. Thevictim unequivocally testified that defendant had subjected her to anal sexual contact on oneoccasion and vaginal intercourse on another. Medical evidence supporting the victim's disclosureindicated that the victim tested positive for a sexually transmitted infection and had an injury toher hymen that is "rarely seen in non-abused children." Other evidence included the victim's anddefendant's birth certificates establishing their ages, and testimony from the victim's mother and acousin establishing the times when the acts occurred and that defendant had access to the victimduring those times. Although a different verdict would not have been unreasonable, the victim"was extensively cross-examined regarding the incident[s] and her account was not contradictedby any compelling evidence and was not so unworthy of belief as to be incredible as a matter oflaw" (People v Rose, 185 AD3d1228, 1230 [2020] [internal quotation marks, ellipsis and citations omitted], lvdenied 35 NY3d 1115 [2020]). Viewing the evidence in a neutral light and deferring to thejury's credibility determinations, the verdict is not against the weight of the evidence (seePeople v Rose, 185 AD3d at 1230; People v Johnson, 183 AD3d 77, 87-88 [2020], lv denied35 NY3d 993 [2020]).
"The prompt outcry doctrine is an evidentiary rule permitting the admission of hearsayevidence that a victim promptly complained of a sexual assault on the ground that some jurorswould inevitably doubt the veracity of a victim who failed to promptly complain of a sexualassault" (People v Leonard, 177AD3d 1158, 1160 [2019] [internal quotation marks and citations omitted], lv denied34 NY3d 1160 [2020]; see People vRosario, 17 NY3d 501, 512 [2011]). "A prompt outcry is admissible to corroborate theallegation that an assault took place, as long as it is made at the first suitable opportunity" (People v Hackett, 167 AD3d 1090,1094 [2018] [internal quotation marks and citations omitted]), "but there is and can be noparticular time specified[;] [t]hus, promptness is a relative concept dependent on the facts"(People v McDaniel, 81 NY2d 10, 17 [1993] [internal quotation marks and citationomitted]; accord People v Ortiz, 135AD3d 649, 650 [2016], lv denied 27 NY3d 1004 [2016]; see People v Caban, 126 AD3d808, 808-809 [2015], lv denied 27 NY3d 994 [2016]). "[A] significant delay inreporting does not necessarily preclude outcry evidence, especially where the victim is a child"(People v Ortiz, 135 AD3d at 650). Although the episodes of abuse described by thevictim occurred on three different dates between February 2015 and April 2015 and the lastepisode did not result in a conviction, that last episode occurred four days prior to the disclosurereflected in the testimony of the victim and her mother. Considering the victim's age, thatdefendant was an authority figure in her life and her testimony that she was scared [*3]of defendant, Supreme Court did not err in concluding that suchdisclosure was admissible as a prompt outcry (see People v Lapi, 105 AD3d 1084, 1088 [2013], lv denied21 NY3d 1043 [2013]; People vStuckey, 50 AD3d 447, 448 [2008], lv denied 11 NY3d 742 [2008]; Matter of Gregory AA., 20 AD3d726, 728 [2005]; compare People v Ortiz, 135 AD3d at 650).
On a related note, Supreme Court did not abuse its discretion in admitting testimony that thevictim had observed defendant hitting her mother. The victim testified that she delayed indisclosing the abuse because she was afraid of getting in trouble by her mother or defendant, andshe was scared of defendant because he had always given off a scary look and she had seen himhit her mother. The mother testified that, within the week before the victim's disclosure, thevictim had witnessed defendant perpetrate a physical assault on the mother. The domesticviolence was witnessed after the first two incidents of sexual abuse against the victim, butappears to have occurred prior to the final charged incident. Although the domestic violencecould not have been the reason for the victim's initial failure to disclose, her observation of thatevent could be seen as a verification of her prior feeling that defendant was scary. As a victim'sfear may be considered in determining whether a disclosure is prompt (see People v Evangelista, 155 AD3d972, 973 [2017], lv denied 31 NY3d 1013 [2018]; People v Sprague, 151 AD3d1921, 1924 [2017], lv denied 30 NY3d 1023 [2017]; People v Stuckey, 50AD3d at 448; see also People vNicholson, 26 NY3d 813, 829-830 [2016]; Matter of Gregory AA., 20 AD3d at727-728), this Molineux evidence was properly admitted because it provided necessarybackground as to why the victim feared defendant and completed the victim's narrative as to whyshe had not immediately disclosed the abuse (see People v Latnie, 180 AD3d 1238, 1243 [2020]; People v Conway, 179 AD3d1218, 1220 [2020], lv denied 35 NY3d 941 [2020]). Furthermore, the courtimmediately provided limiting instructions to explain the proper use of, and minimize theprejudicial effect of, the testimony (seePeople v Meadows, 183 AD3d 1016, 1021 [2020], lv denied 35 NY3d 1047[2020]; People v Schwerbel, 224 AD2d 830, 831-832 [1996]).
"Hospital records fall within the business records exception when they reflect acts,occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful toan understanding of the medical or surgical aspects of the particular patient's hospitalization.Where details of how a particular injury occurred are not useful for purposes of medicaldiagnosis or treatment, they are not considered to have been recorded in the regular course of thehospital's business" (People vOrtega, 15 NY3d 610, 617 [2010] [internal quotation marks, brackets, ellipsis andcitations omitted]; accord People vNelson, 128 AD3d 1225, 1228 [2015], lv denied 26 NY3d 1041 [2015]; seePeople v Garrand[*4], 189 AD3d 1763, 1769 [2020]).However, where a child was or may have been abused, just as in a domestic violence situation,"[d]etails of the abuse, even including the perpetrator's identity, may be relevant to diagnosis andtreatment . . . because the medical provider must consider the victim's safety whencreating a discharge plan and gauging the patient's psychological [or counseling] needs" (People v Pham, 118 AD3d 1159,1162 [2014], lv denied 24 NY3d 1087 [2014]; see People v Duhs, 16 NY3d 405, 408-409 [2011]; People v Hansson, 162 AD3d1234, 1239 [2018], lv denied 32 NY3d 1004 [2018]; Matter of Luis P., 161 AD3d 59,76 [2018], affd 32 NY3d 1165 [2018]; compare People v Santiago, 156 AD3d 1386, 1389 [2017], lvdenied 31 NY3d 1017 [2018]).
The People successfully sought admission of the victim's medical records and the testimonyof two medical professionals, all of which revealed the victim's statements that defendant hadsexually abused her. Although a physician assistant testified that knowing the identity of theperpetrator was not necessary for her examination, the examining pediatrician testified that thisinformation is relevant and important to make sure that the child is in a safe environment.Despite the contrary statement of the physician assistant, based upon the significant role thatdefendant had in the victim's life and the fact that he had regular access to her home, his identitywas germane to the victim's medical care, as it was important for the creation of a properdischarge plan (see People v Duhs, 16 NY3d at 408; People v Hansson, 162AD3d at 1239; Matter of Luis P., 161 AD3d at 76). Accordingly, Supreme Court did noterr in admitting the medical records and related testimony at trial, as they were relevant to thevictim's treatment and recorded in the regular course of business (see People v Ortega, 15NY3d at 617; People v Garrand, 189 AD3d at 1769; People v Nelson, 128 AD3dat 1228; People v Rogers, 8 AD3d888, 892 [2004]).
"A claimed violation of the constitutional right to the effective assistance of counsel will notsurvive judicial scrutiny so long as the evidence, the law, and the circumstances of a particularcase, viewed in totality and as of the time of the representation, reveal that the attorney providedmeaningful representation" (People vDickinson, 182 AD3d 783, 789 [2020] [internal quotation marks and citations omitted],lv denied 35 NY3d 1065 [2020]). "[A] defendant is required to demonstrate that he or shewas not provided meaningful representation and that there is an absence of strategic or otherlegitimate explanations for counsel's allegedly deficient conduct" (People v Bowen, 185 AD3d 1219,1221 [2020] [internal quotation marks and citations omitted]). "[T]rial counsel cannot beineffective for failing to advance an argument that has little or no chance of success" (People v Williams, 35 NY3d 24,45 [2020]).
Defendant's primary allegations of ineffective assistance rely upon counsel's failure [*5]at trial to renew objections to the admissibility of evidence and tomove to strike testimony. Because Supreme Court had decided these issues prior to the testimonyin question, in response to pretrial motions or motions in limine, counsel was not required torenew his objections upon the elicitation of the testimony nor move to strike it in order topreserve the objections for appellate review (see People v Finch, 23 NY3d 408, 413 [2014]; People v Guy, 93 AD3d 877, 879[2012], lv denied 19 NY3d 961 [2012]).
Defendant did not preserve his arguments that the admission of certain medical reportsviolated hearsay rules and his right to confrontation, and we decline to exercise our interest ofjustice jurisdiction. Although defendant contends that counsel should have objected to admissionof evidence regarding the victim and her mother having tested positive for a sexually transmittedinfection—on grounds of hearsay, lack of foundation, and violation of ConfrontationClause rights because the People did not present testimony from the technicians who performedthe tests—counsel may have had strategic reasons for allowing this evidence to beadmitted. For instance, counsel used those positive test results, in contrast with defendant'snegative test results—which were also admitted without testimony from the technicianswho performed those tests—to argue that defendant was not the source of the victim's orher mother's infection (see People vForney, 183 AD3d 1113, 1117-1118 [2020], lv denied 35 NY3d 1065 [2020]).Counsel presented cogent opening and closing statements, engaged in thoroughcross-examination, argued extensively regarding the admissibility of evidence, and obtained thedismissal of one count and acquittal on another. Viewing the record as a whole, we find thatdefendant received meaningful representation (see People v Bombard, 187 AD3d 1417, 1420 [2020]; People v Robinson, 183 AD3d1118, 1123 [2020], lv denied 35 NY3d 1069 [2020]).
Supreme Court did not err in sustaining the People's objection to, and issuing a curativeinstruction regarding, defense counsel's statements in summation that defendant was a victim offalse allegations, the charges were serious and they carry the potential for a lengthy sentence ofimprisonment. These statements were improper because they went beyond merely questioningwitness credibility and, rather, were designed to elicit sympathy from the jury (see People v Garrow, 126 AD3d1362, 1364 [2015]; People v Armstrong, 299 AD2d 224, 225 [2002], lvdenied 99 NY2d 612 [2003]). We have reviewed defendant's remaining contentions and findthem to be without merit.
Egan Jr., Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that the judgmentand amended order are affirmed.