People v. Leonard

• Decision Date: 19 June 2015
• Docket Number: 512 KA 10-01490
• Citation: 12 N.Y.S.3d 446,129 A.D.3d 1592,2015 N.Y. Slip Op. 05314
• Parties: The PEOPLE of The State of New York, Respondent, v. Richard M. LEONARD, Defendant–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1592

12 N.Y.S.3d 446

2015 N.Y. Slip Op. 05314

The PEOPLE of The State of New York, Respondent

v.Richard M. LEONARD, Defendant–Appellant. (Appeal No. 1.).

512 KA 10-01490

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

June 19, 2015.

Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.

PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.

OpinionMEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65[2] ) and unlawfully dealing with a child in the first degree (§ 260.20 ). In appeal No. 2, defendant appeals from an order denying his motion seeking to vacate the judgment of conviction pursuant to CPL 440.10 on the grounds that he was denied effective assistance of counsel and that the grand jury proceedings were impaired by prosecutorial misconduct.

Addressing first appeal No. 2, we conclude that County Court properly denied without a hearing that part of defendant's CPL 440.10 motion alleging that he was denied effective assistance of counsel “inasmuch as trial counsel, the only person who could have provided any material information not already before the motion court, was deceased” (People v. Abuhamra, 107 A.D.3d 1630, 1630, 968 N.Y.S.2d 294, lv. denied 22 N.Y.3d 1038, 981 N.Y.S.2d 372, 4 N.E.3d 384 [internal quotation marks omitted] ). With respect to the merits of the CPL 440.10 motion, defendant contends that he was denied effective assistance of counsel because trial counsel failed to utilize, as part of his defense strategy, certain prior statements made by a witness to the police that were allegedly inconsistent with the witness's trial testimony and because trial counsel failed to request a limiting instruction after introduction of certain evidence admitted under a Molineux exception (see People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 ). We see no basis for granting postconviction relief to defendant on either ground.

Under New York's “flexible standard” of evaluating claims of ineffective representation (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ), so long as “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation,” counsel's performance will not be found ineffective (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). “Isolated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is ‘so serious that defendant did not receive a fair trial’ ” (People v. Henry, 95 N.Y.2d 563, 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112 ; see People v. Flores, 84 N.Y.2d 184, 188–189, 615 N.Y.S.2d 662, 639 N.E.2d 19 ). Moreover, a defendant advancing an ineffectiveness claim based on particular errors in counsel's performance must “demonstrate the absence of strategic or other legitimate explanations” for the alleged deficiencies (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see People v. Taylor, 1 N.Y.3d 174, 177, 770 N.Y.S.2d 711, 802 N.E.2d 1109 ). With respect to the first ground asserted by defendant, even assuming, arguendo, that the evidence of the witness's prior statements to the police would have been admissible, either to impeach that witness or on defendant's direct case, we conclude that defendant has not established that trial counsel's failure to utilize those statements demonstrated a lack of strategy. Rather, we conclude that defendant's contention reflects a mere disagreement with trial strategy, which does not amount to ineffective assistance of counsel (see People v. Stepney, 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752, lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 ; People v. Douglas, 60 A.D.3d 1377, 1377, 875 N.Y.S.2d 723, lv. denied 12 N.Y.3d 914, 884 N.Y.S.2d 695, 912 N.E.2d 1076 ).

With respect to the second ground asserted by defendant, we conclude that any error on trial counsel's part in not requesting a limiting instruction regarding the evidence of past uncharged crimes does not rise to the level of ineffective assistance of counsel when that error is viewed in light of trial counsel's “entire representation of defendant” (People v. Oathout, 21 N.Y.3d 127, 132, 967 N.Y.S.2d 654, 989 N.E.2d 936 ; see Flores, 84 N.Y.2d at 188, 615 N.Y.S.2d 662, 639 N.E.2d 19 ). We reject defendant's related contention in appeal No. 2 that the integrity of the grand jury proceedings was impaired by the prosecutor's failure to introduce the witness's prior statements to the police. Dismissal of an indictment on the ground that “the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35[5] ) is an “exceptional remedy” (People v. Darby, 75 N.Y.2d 449, 455, 554 N.Y.S.2d 426, 553 N.E.2d 974 ). Dismissal is “limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury” (People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ), and “[t]he People have broad discretion in presenting a case to the grand jury and need not ‘present all of their evidence tending to exculpate the accused’ ” (People v. Radesi, 11 A.D.3d 1007, 1007, 782 N.Y.S.2d 341, lv. denied 3 N.Y.3d 760, 788 N.Y.S.2d 676, 821 N.E.2d 981, quoting People v. Mitchell, 82 N.Y.2d 509, 515, 605 N.Y.S.2d 655, 626 N.E.2d 630 ; see People v. Carr, 99 A.D.3d 1173, 1176, 952 N.Y.S.2d 342, lv. denied 20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328 ). Here, we conclude that the prior statements made by the witness to the police were not “entirely exculpatory” (People v. Gibson, 260 A.D.2d 399, 399, 688 N.Y.S.2d 561, lv. denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510 ), and that the failure to present those statements to the grand jury “did not result in a needless or unfounded prosecution” (People v. Smith, 289 A.D.2d 1056, 1057, 735 N.Y.S.2d 693, lv. denied 98 N.Y.2d 641, 744 N.Y.S.2d 770, 771 N.E.2d 843 [internal quotation marks omitted] ).

We reject defendant's contention in appeal No. 1 that the court erred in admitting evidence of defendant's prior uncharged sexual abuse of the victim which, according to the victim's testimony, also occurred while she was unconscious from alcohol intoxication. “The general rule is that evidence of ... uncharged crimes may not be offered to show defendant's bad character or his propensity towards crime but may be admitted only if the acts help establish some element of the crime under consideration or are relevant because of some recognized exception to the general rule” (People v. Lewis, 69 N.Y.2d 321, 325, 514 N.Y.S.2d 205, 506 N.E.2d 915 ; see Molineux, 168 N.Y. at 293, 61 N.E. 286 ). Here, we conclude that the evidence of uncharged crimes was admissible to establish intent and motive under the first two exceptions specifically identified in Molineux's illustrative and nonexhaustive list (see id. at 293, 61 N.E. 286 ; see also People v. Alvino, 71 N.Y.2d 233, 241–242, 525 N.Y.S.2d 7, 519 N.E.2d 808 ; People v. Calvano, 30 N.Y.2d 199, 205–206, 331 N.Y.S.2d 430, 282 N.E.2d 322 ). Specifically, the disputed evidence was relevant...