People v. Bleakley

• Decision Date: 06 June 1988
• Citation: 529 N.Y.S.2d 347,141 A.D.2d 553
• Parties: The PEOPLE, etc., Respondent, v. Timothy BLEAKLEY and Jeffrey J. Anesi, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 347

529 N.Y.S.2d 347

141 A.D.2d 553

The PEOPLE, etc., Respondent, v. Timothy BLEAKLEY and Jeffrey J. Anesi, Appellants.

Supreme Court, Appellate Division,

Second Department.

June 6, 1988.

Patrick M. Wall, New York City (Oren Root Jr., of counsel), for appellants.

Carl A. Vergari, Dist. Atty., White Plains (Richard L. Hecht and Maryanne Luciano, of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, BROWN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendants (1) from two judgments (one as to each of them), of the County Court, Westchester County (West, J.), both rendered November 7, 1985, convicting them of rape in the first degree (two counts), sodomy in the first degree and sexual abuse in the first degree, upon jury verdicts, and imposing sentences; and (2) by permission, from an order of the same court, entered June 12, 1987, which denied, without a hearing, the defendants' applications pursuant to CPL 440.10 to vacate the judgments rendered November 7, 1985. After the judgments were affirmed by this court ( People v. Bleakley, 125 A.D.2d 687, 509 N.Y.S.2d 874), the case was remitted to this court by the Court of Appeals for further proceedings ( People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).

ORDERED that the judgments and order are affirmed, and the case is remitted to the County Court, Westchester County, for further proceedings pursuant to CPL 460.50(5) with respect to the defendant Anesi.

The defendants stand convicted of charges arising out of the rape and sexual assault upon the complainant in Westchester County during the early morning hours of March 29, 1985. This court's original decision described in great detail the facts surrounding the attack and the evidence against the defendants. The majority of the court concluded that the evidence was sufficient to support the jury verdict ( see, People v. Bleakley, 125 A.D.2d 687, 509 N.Y.S.2d 874, supra ). On appeal, the Court of Appeals affirmed this court's determination that the evidence was legally sufficient to sustain the verdicts of guilt and remitted the matter for a factual review of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672, supra ). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5] ). Although certain inconsistencies existed in the complainant's testimony, it is well established that "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Based on the evidence in this case, we find no basis to disturb the jury's determination.

The defendants' CPL 440.10 motion is based, in part, on claims of ineffective assistance of their trial counsels. The defendants premise their claim, in the first instance, upon trial counsels' failure to cross-examine the complainant as to inconsistencies in her trial testimony and prior statements regarding the condition of her clothes after the attack, the content of her conversation with her friend following the rape, and whether her attackers dragged her from the car during the assault. Secondly, the defendants claim that their counsels were ineffective by reason of their failure to request Brady (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) material with regard to the complainant's background. The defendants submit that such a request would have revealed, inter alia, that the complainant had been arrested for shoplifting approximately 10 years prior to the instant crime and received an adjournment in contemplation of dismissal. Thirdly, the defendants assert that trial counsels should have sought as Brady material an explanation as to why the prosecution chose not to call the complainant's girlfriend, Jodi, as a prosecution witness. Jodi had been with the complainant for several hours during the evening previous to the attack. During that time, the two women visited various bars and had several drinks. Jodi left the complainant approximately two hours before the assault occurred. The defendants allege that Jodi's testimony would have been relevant on the issue of whether the complainant was intoxicated around the time of the assault.

Having studied the record before this court, we conclude that the defendants received meaningful representation. It is axiomatic that

"It is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy. But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. So long as the evidence, the law, the circumstances of the particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met" (People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400, on remand 87 A.D.2d 843, 450 N.Y.S.2d 427, affd. on remand 96 A.D.2d 212, 468 N.Y.S.2d 498).

The record reveals that the defense attorneys vigorously cross-examined the complainant with regard to numerous inconsistencies in her trial testimony. The fact that the defense attorneys did not cross-examine the complainant as to every possible inconsistency in her testimony does not warrant a finding of ineffectiveness.

The defendants' additional claims with regard to the trial counsels' failure to make certain Brady requests of the prosecution ignores, in the first instance, the fact that counsel f...