People v. Clarke

• Decision Date: 31 October 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Cory J. CLARKE, Appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1341
975 N.Y.S.2d 194
2013 N.Y. Slip Op. 07073

The PEOPLE of the State of New York, Respondent,
v.
Cory J. CLARKE, Appellant.

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

Oct. 31, 2013.

[975 N.Y.S.2d 196]

Danielle Neroni Reilly, Albany, for appellant.

James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.

Before: ROSE, J.P., STEIN, McCARTHY and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered June 25, 2010, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, predatory sexual assault against a child, incest in the first degree, sexual abuse in the first degree, assault in the second degree, abandonment of a child and endangering the welfare of a child.

Shortly after noon on July 4, 2009, defendant reported that the victim, then just under seven months old, was missing from a Wal–Mart store in the Town of Thompson, Sullivan County. That evening, the victim was found in a nearby wooded area. Defendant was indicted for various crimes and, following a jury trial, convicted of attempted murder in the second degree, criminal sexual act in the first degree, sexual abuse in the first degree, incest in the first degree, assault in the second degree, abandonment of a child, endangering the welfare of a child, and predatory sexual assault against a child. He was sentenced to an aggregate prison term of 50 years to life, and now appeals. ¹

Defendant first contends that his convictions for attempted murder in the second degree, sexual abuse in the first degree and assault in the second degree are not supported by legally sufficient evidence. As he concedes, this claim was not preserved for appellate review ( see People v. Gray, 86 N.Y.2d 10, 19–20, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In view of

[975 N.Y.S.2d 197]

defendant's inconsistent descriptions of his actions on the day in question, the contrast between his accounts and the actual events revealed by surveillance video and witness testimony, his apparent efforts to prevent police from locating the victim, the circumstances of her eventual discovery, her extreme youth, the nature of her injuries and the other evidence, we find no reason to exercise our interest of justice jurisdiction to modify any of these convictions ( seeCPL 470.15[3]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Defendant next contends that County Court erred in denying his pretrial motion pursuant to County Law § 722–c for funds to hire a DNA expert. To prevail, he was required to show that he was indigent, that the service was necessary to his defense and, if the compensation he sought exceeded the statutory limit of $1,000, that extraordinary circumstances justified the expenditure ( see People v. Brand, 13 A.D.3d 820, 821, 787 N.Y.S.2d 169 [2004], lv. denied4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005]; People v. Dearstyne, 305 A.D.2d 850, 852, 761 N.Y.S.2d 118 [2003], lv. denied100 N.Y.2d 593, 766 N.Y.S.2d 169, 798 N.E.2d 353 [2003] ). As defendant contends, the fact that a relative was paying his counsel fees did not defeat his claim of indigency ( see People v. Ulloa, 1 A.D.3d 468, 469, 766 N.Y.S.2d 699 [2003] ). Nonetheless, the decision whether to grant an application under County Law § 722–c is discretionary ( see People v. Lane, 195 A.D.2d 876, 878, 600 N.Y.S.2d 848 [1993], lv. denied82 N.Y.2d 850, 606 N.Y.S.2d 602, 627 N.E.2d 524 [1993] ). Defendant's broad application sought public funds to hire multiple investigators and experts, and failed to state a “distinct necessity” for the assistance of a DNA expert other than the People's use of DNA evidence (People v. Dove, 287 A.D.2d 806, 807, 731 N.Y.S.2d 769 [2001]; see People v. Gallow, 171 A.D.2d 1061, 1062–1063, 569 N.Y.S.2d 530 [1991], lv. denied77 N.Y.2d 995, 571 N.Y.S.2d 920, 575 N.E.2d 406 [1991] ). Moreover, the application made no claim or showing of extraordinary circumstances, nor did it indicate whether the compensation sought would exceed $1,000 or detail the time to be spent and particular services rendered by the DNA expert ( see People v. Dove, 287 A.D.2d at 807, 731 N.Y.S.2d 769; People v. Dearstyne, 305 A.D.2d at 852–853, 761 N.Y.S.2d 118).² Accordingly, we find that the denial was not an abuse of discretion.

Defendant further relies upon the denial of his pretrial request for a DNA expert as the basis of his claim that his posttrial motion to vacate the jury verdict should have been granted. In support of the posttrial motion, he submitted the report of a DNA expert who criticized the People's DNA analysis. Assuming without deciding that defendant sufficiently established that this report could not have been submitted before trial with due diligence ( seeCPL 330.30[3] ),³ the report did not constitute newly discovered evidence, as it merely attempted to impeach and contradict trial evidence and—in view of the overwhelming evidence of defendant's guilt—did not create a probability that the

[975 N.Y.S.2d 198]

verdict would have been more favorable if the report had been admitted at trial ( see People v. Salemi, 309 N.Y. 208, 226, 128 N.E.2d 377 [1955], cert. denied350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827 [1956]; People v. Tucker, 40 A.D.3d 1213, 1215, 834 N.Y.S.2d 590 [2007], lv. denied9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761 [2007]; People v. Hayes, 295 A.D.2d 751, 752, 744 N.Y.S.2d 530 [2002], lv. denied98 N.Y.2d 730, 749 N.Y.S.2d 480, 779 N.E.2d 191 [2002] ).

We reject defendant's contention that his counsel inadequately waived his right to be present during sidebar conferences ( see generally People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992] ). Prior to jury selection, County Court inquired whether defendant would attend sidebar conferences, and defense counsel advised that he would not. A moment later County Court noted defendant's presence in the courtroom. Shortly thereafter, the prosecutor sought to confirm that defendant intended to waive his appearance at sidebar conferences, and defense counsel responded to the court's further inquiry that he would. Defendant now argues that he was not present when his counsel waived his appearance. However, this record does not demonstrate that he was absent, and we thus find that defendant has not met the burden of coming forward with substantial evidence to defeat the presumption of regularity that attaches to judicial proceedings ( see People v. Velasquez, 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003]; People v. Keen, 94 N.Y.2d 533, 538–539, 707 N.Y.S.2d 380, 728 N.E.2d 979 [2000]; People v. Robinson, 191 A.D.2d 523, 523, 595 N.Y.S.2d 56 [1993], lv. denied81 N.Y.2d 1018, 600 N.Y.S.2d 207, 616 N.E.2d 864 [1993]; see also People v. Williams, 11 A.D.3d 810, 812, 784 N.Y.S.2d 185 [2004], lv. denied4 N.Y.3d 769, 792 N.Y.S.2d 13, 825 N.E.2d 145 [2005] ). We further note that, following the waiver by counsel, defendant was present during two sidebar conferences exploring potential juror bias and, on appeal, he has not identified any material stage of the proceedings from which he was excluded and in which his presence could have had “a substantial effect on [his] ability to defend against the charges” (People v. Sloan, 79 N.Y.2d 386, 392, 583 N.Y.S.2d 176, 592 N.E.2d 784 [1992] ). While the best practice is for the court to directly explain the right being waived to a defendant and confirm the knowing and voluntary nature of his or her waiver, no such colloquy is required “on the off-chance that a defendant who is adequately represented by counsel may nevertheless not know what he [or she] is doing” (People v. Velasquez, 1 N.Y.3d at 49, 769 N.Y.S.2d 156, 801 N.E.2d 376 [internal quotation marks, ellipses and citation omitted]; see People v. Hoppe, 96 A.D.3d 1157, 1157–1158, 946 N.Y.S.2d 671 [2012], lv. denied19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] ).

Defendant next contends that he was denied his right to a fair trial by the admission of three photographs depicting injuries to the infant victim's genital and rectal area, which he claims were highly prejudicial and not probative of any material issue, as the nature of the injuries was not in dispute. This...