People v. Arnold

• Decision Date: 09 June 2011
• Citation: 85 A.D.3d 1330,924 N.Y.S.2d 679,2011 N.Y. Slip Op. 04782
• Parties: The PEOPLE of the State of New York, Respondent,v.Gary ARNOLD, Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1330

924 N.Y.S.2d 679

2011 N.Y. Slip Op. 04782

The PEOPLE of the State of New York, Respondent,

v.Gary ARNOLD, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 9, 2011.

Kindlon, Shanks & Associates, Albany (Terence L. Kindlon of counsel), for appellant.James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), for respondent.Before: PETERS, J.P., SPAIN, ROSE and EGAN JR., JJ.PETERS, J.P.

Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered November 4, 2009, upon a verdict convicting defendant of the crimes of criminal sexual act in the second degree (two counts), rape in the second degree (four counts) and sexual abuse in the second degree (four counts).

The victim (born in 1993) lived with her mother and Joanne Arnold (hereinafter Arnold), her mother's then-partner, until 2002 when their relationship ended. After moving out of Arnold's house, the victim and her younger sister continued to have regular visitation with Arnold. At some point thereafter, Arnold became romantically involved with defendant and, in 2004, they were engaged to be married. In November 2005, Arnold moved into defendant's house and the victim and her sister continued to visit her there. According to the victim, who was 12 years old at the time, defendant began to sexually abuse her during these visits with the abuse escalating over the next two years.

In August 2007, the victim attempted to confide in defendant's sister, who lived next door to defendant and Arnold, by slipping a note in her pocketbook that stated that someone was hurting her. The following week, the victim revealed to defendant's sister that someone was sexually abusing her, but she refused to identify who. The victim then confided in her counselor about the abuse, after which an investigation ensued by the police and Child Protective Services. When the authorities arrived at the victim's school to speak with her, however, she recanted her accusations and told them nothing had happened. At the conclusion of the investigation in December 2007, the victim resumed her regular visits with Arnold. In March 2008, on the same day that she became upset over certain e-mails that defendant had allegedly deleted from her e-mail account, the victim spoke to Arnold, confirmed her previous allegations and identified defendant as her abuser. She subsequently met with and imparted this information to her counselor, who again notified the appropriate authorities.

After the victim provided a supporting deposition to police regarding the abuse, defendant was arrested and indicted on two counts of criminal sexual act in the second degree ( see Penal Law § 130.45[1] ), four counts of rape in the second degree ( see Penal Law § 130.30[1] ) and four counts of sexual abuse in the second degree ( see Penal Law § 130.60[2] ). Following a jury trial, defendant was convicted on all counts. Defendant thereafter unsuccessfully moved to set aside the verdict on the ground that his trial counsel was ineffective. He now appeals.

Initially, defendant contends that the verdict is against the weight of the evidence. The victim's in-court testimony as to the alleged sexual abuse represented the sole evidence against defendant. She explained how she and defendant often had opportunities to be alone during her visits with Arnold at their home, and described the six separate instances of sexual abuse allegedly perpetrated upon her by defendant between November 2005 and August 2007 at that location. Upon questioning by the People, the victim testified that she initially recanted her allegations because she was afraid of losing her relationship with Arnold and defendant's sister.

In his defense, defendant presented the testimony of Arnold and his sister. Arnold testified that when the children visited her, they were always in her care and never left alone with anyone else. She also stated that the victim was not at their home on at least two of the dates that the alleged abuse occurred, and explained that much of the house was an open space, particularly the living room where the victim claimed that some of the abuse took place. However, Arnold also admitted, consistent with the victim's testimony, that she went to sleep before defendant at times, was out of the house on Wednesdays for a few hours, and that the addition to the house, in which at least some of the abuse allegedly took place, was separated from the rest of the home by a wall and a doorway. Defendant also introduced into evidence two e-mails from the victim to her counselor authored prior to her reaccusation, in which the victim stated that the “whole [defendant] thing is a story,” that she “made [it] up” because she hates and distrusts him, and that she should have thought more before accusing him because she “never understood what the consenquences [ sic] would be.”

Since an acquittal would not have been unreasonable in light of this evidence, we must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted]; see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]; People v. Houghtaling, 82 A.D.3d 1493, 1494, 922 N.Y.S.2d 579 [2011] ). Contrary to defendant's contention, the victim's testimony was not so inherently unbelievable as to be unworthy of belief, and the fact that she initially recanted her accusations presented questions of credibility for the jury to resolve ( see People v. Reynolds, 81 A.D.3d 1166, 1166–1167, 917 N.Y.S.2d 401 [2011]; People v. Nowinski, 36 A.D.3d 1082, 1084, 827 N.Y.S.2d 356 [2007], lv. denied 8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668 [2007] ).¹ According deference to those credibility determinations and viewing the evidence in a neutral light, we cannot say that the verdict was contrary to the weight of the evidence ( see People v. Reynolds, 81 A.D.3d at 1167, 917 N.Y.S.2d 401; People v. Rosa, 57 A.D.3d 1018, 1020, 868 N.Y.S.2d 812 [2008], lv. denied 12 N.Y.3d 762, 876 N.Y.S.2d 713, 904 N.E.2d 850 [2009]; People v. Pomales, 49 A.D.3d 962, 963, 853 N.Y.S.2d 407 [2008], lv. denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008]; People v. Frary, 29 A.D.3d 1223, 1225, 815 N.Y.S.2d 334 [2006], lv. denied 7 N.Y.3d 788, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006] ).

A new trial is required, however, because defendant was deprived of the effective assistance of counsel. To prevail on a claim of ineffective assistance, a defendant must demonstrate that he or she was deprived of a fair trial by less than meaningful representation ( see People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995]; People v. Miller, 63 A.D.3d 1186, 1186, 880 N.Y.S.2d 383 [2009] ). It is incumbent upon the defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Mindful that we “must avoid confusing ‘true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis' ” ( People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584, quoting People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]; accord People v. Jones, 70 A.D.3d 1253, 1256, 895 N.Y.S.2d 591 [2010] ), we nevertheless conclude that defendant has satisfied that standard here.

Here, the deficiencies in defense counsel's representation commenced from opening statements. He failed to object to remarks by the prosecutor that improperly implied a special knowledge or expertise regarding the behavior of abused children and which vouched for the victim's veracity. In his opening statement, counsel promised the jury that he would put the victim's diary, a notebook and her Myspace messages into evidence and stated that this information “will just shock you,” yet he never explained how this information would relate to why the victim would falsely accuse defendant, nor did he ever attempt to introduce any of the Myspace messages into evidence. Although his attempts to introduce portions of the victim's diary (as well as her notebook) were thwarted by the sustained objections of the prosecutor, counsel failed to make an appropriate offer of proof or otherwise demonstrate how this information was relevant to the victim's credibility. Even after counsel elicited responses from the...