People v. Brown

• Decision Date: 25 March 2011
• Citation: 2011 N.Y. Slip Op. 02297,919 N.Y.S.2d 674,82 A.D.3d 1698
• Parties: The PEOPLE of the State of New York, Respondent,v.Dana P. BROWN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1698

919 N.Y.S.2d 674

2011 N.Y. Slip Op. 02297

The PEOPLE of the State of New York, Respondent,

v.Dana P. BROWN, Defendant–Appellant.

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

March 25, 2011.

Thomas E. Andruschat, East Aurora, for Defendant–Appellant.Dana P. Brown, Defendant–Appellant Pro Se.Gerald L. Stout, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, predatory sexual assault against a child (Penal Law § 130.96). Defendant moved pro se to dismiss the indictment on the ground that he was denied his right to a speedy trial pursuant to CPL 30.30, but he failed to contest the specific statutory exclusions on which the People thereafter relied. It is well settled that, “once the People identify the statutory ‘exclusions on which they intend to rely,’ the defendant preserves challenges to the People's reliance on those exclusions for appellate review by ‘identify[ing] any legal or factual impediments to the use of [those] exclusions' ... The purpose of adhering to strict rules of preservation in [that] context is to provide the court with an ‘opportunity to remedy the problem and thereby avert reversible error’ ” ( People v. Goode, 87 N.Y.2d 1045, 1047, 643 N.Y.S.2d 477, 666 N.E.2d 182). Defendant therefore failed to preserve for our review his contentions regarding those exclusions. In any event, those contentions are without merit. The People timely announced their readiness for trial within six months of the commencement of the criminal action ( see CPL 30.30[1][a] ). The People correctly concede that they are chargeable with the delay between August 21, 2008, when County Court dismissed the first indictment, and September 26, 2008, when the People announced their readiness for trial on the second indictment. That delay notwithstanding, the total prereadiness time chargeable to the People was 40 days, and only an additional 13 days of postreadiness delay is chargeable to the People. “Thus, the record establishes that the total period of time chargeable to the People is less than six months” ( People v. Figueroa, 15 A.D.3d 914, 915, 788 N.Y.S.2d 772).

Contrary to the further contention of defendant, the court properly refused to suppress his statements to the police. The record of the Huntley hearing establishes that defendant was not subject to custodial interrogation and thus that Miranda warnings were not required ( see generally People v. Centano, 76 N.Y.2d 837, 838, 560 N.Y.S.2d 121, 559 N.E.2d 1280; People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89).

Defendant contends that he was denied a fair trial based on the testimony of a police investigator with respect to the video recording that defendant showed to the victim and which was obtained by the investigator. Defendant failed to object to the prosecutor's comments on summation concerning that testimony, including the prosecutor's use of the name of the video recording, and thus his contention with respect to those comments is not preserved for our review ( see People v. Beggs, 19 A.D.3d 1150, 1151, 796 N.Y.S.2d 826, lv. denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155). Defendant also failed to preserve for our review his contention that the court failed to clarify its jury instruction regarding that testimony inasmuch as he failed to object to that charge ( see People v. Nenni, 269 A.D.2d 785, 786, 704 N.Y.S.2d 405, lv. denied 95 N.Y.2d 801, 711 N.Y.S.2d 169, 733 N.E.2d 241; People v. Ocasio, 241 A.D.2d 933, 661 N.Y.S.2d 344, lv. denied 90 N.Y.2d 908, 663 N.Y.S.2d 520, 686 N.E.2d 232). In any event, defendant's contentions are without merit. The victim testified that she watched a certain movie at the direction of defendant, and thus the investigator's testimony that such a video recording existed was admissible to support her testimony, and the prosecutor was permitted to comment on that evidence in summation.

Defendant also failed to preserve for our review his contention that the court permitted improper bolstering of the victim's testimony ( see People v. Rodriguez, 284 A.D.2d 952, 728 N.Y.S.2d 597, lv. denied 96 N.Y.2d 924, 732 N.Y.S.2d 641, 758 N.E.2d 667; People v. Dunn, 204 A.D.2d 919, 920–921, 612 N.Y.S.2d 266, lv. denied 84 N.Y.2d 907, 621 N.Y.S.2d 524, 645 N.E.2d 1224). In any event, that contention is without merit. With respect to the testimony of the first witness in question, we note that the court sustained defendant's objection to that testimony and thus it cannot be said that the court permitted improper bolstering through the testimony of that witness. With respect to the testimony of the second witness in question, we note that the witness merely testified that the victim indicated that her father was the perpetrator. Even assuming, arguendo, that the witness's testimony constituted improper bolstering, we conclude that the error is harmless inasmuch as the evidence of defendant's guilt was overwhelming and there was no significant probability that defendant would have been acquitted but for the error ( see People v. Rice, 75 N.Y.2d 929, 932, 555 N.Y.S.2d 677, 554 N.E.2d 1265; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Defendant failed to preserve for our review his further contention that the first count of the indictment is duplicitous ( see People v. Sponburgh, 61 A.D.3d 1415, 877 N.Y.S.2d 585, lv. denied 12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092; People v. Pyatt, 30 A.D.3d 265, 817 N.Y.S.2d 46, lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ). We reject the contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel based on, inter alia, defense counsel's failure to move to dismiss the first count of the indictment as duplicitous. “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to [make such a motion]” ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698). Here, defendant failed to meet that burden, and thus defense counsel's purported “failure, ‘without more, is insufficient to demonstrate ineffective assistance’ ” ( People v. Hibbard, 27 A.D.3d 1196, 1197, 810 N.Y.S.2d 770, lv. denied 7 N.Y.3d 790, 821 N.Y.S.2d 820, 854 N.E.2d 1284; see People v. Hardy, 49 A.D.3d 1232, 856 N.Y.S.2d 324, affd. 13 N.Y.3d 805, 890 N.Y.S.2d 372, 918 N.E.2d 884).

We disagree with the dissent's conclusion that “there can be no doubt that a motion to dismiss counts one and two on duplicity grounds would have been successful and resulted in the dismissal of those counts.” To the contrary, the court could have denied the motion and instead given a jury instruction that would have “eliminated any ‘danger that the jury convicted defendant of an unindicted act or that different jurors convicted defendant based on different acts' ” ( People v. Gerstner, 270 A.D.2d 837, 838, 706 N.Y.S.2d 542; see e.g. People v. Wise, 49 A.D.3d 1198, 1199, 854 N.Y.S.2d 262, lv. denied 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413, 10 N.Y.3d 966, 863 N.Y.S.2d 150, 893 N.E.2d 456; People v. Caballero, 23 A.D.3d 1031, 1032, 803 N.Y.S.2d 849, lv. denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975). Thus, defense counsel was confronted with a tactical determination regarding which course of action was in defendant's best interests, and defendant failed to meet his burden of establishing that defense counsel did not have a strategic or other valid reason for his alleged deficiency. Furthermore, where, as here, the defendant challenges defense counsel's failure, inter alia, to make a motion, “prudence dictates that the issue of ineffective assistance of counsel be raised in a posttrial application ... where ‘a thorough evaluation of each claim based on a complete record’ can be made” ( People v. Zeh, 289 A.D.2d 692, 695, 734 N.Y.S.2d 306, quoting Rivera, 71 N.Y.2d at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698; see People v. Marcial, 41 A.D.3d 1308, 1309, 837 N.Y.S.2d 815, lv. denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757). “We further conclude on the record before us that the cumulative effect of defense counsel's alleged deficiencies, viewed in totality and as of the time of the representation, did not deprive defendant of effective assistance of counsel” ( Marcial, 41 A.D.3d at 1309, 836 N.Y.S.2d 479; see generally People v. Satterfield, 66 N.Y.2d 796, 798–799, 497 N.Y.S.2d 903, 488 N.E.2d 834; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence is not unduly harsh or severe. We have considered the remaining contentions of defendant in his main and pro se supplemental briefs and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is affirmed.

All concur except CARNI and LINDLEY, JJ., who dissent in part and vote to modify in accordance with the following Memorandum:

We respectfully disagree with the conclusion of our colleagues that we should not review defendant's duplicity contention as a matter of discretion in the interest of justice. Inasmuch as defense counsel failed to move to dismiss the first and second counts of the indictment on duplicity grounds, we also disagree with the majority's conclusion that defendant received effective assistance of counsel. We therefore dissent in part.

Defendant contends that count one of the indictment, charging him with predatory sexual assault against a child (Penal Law § 130.96), was rendered duplicitous by the...