People v. Scott

• Decision Date: 31 March 2015
• Docket Number: 5511/09, 14665, 1466
• Citation: 6 N.Y.S.3d 247,2015 N.Y. Slip Op. 02697,126 A.D.3d 645
• Parties: The PEOPLE of the State of New York, Respondent, v. Andre SCOTT, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 645

6 N.Y.S.3d 247

2015 N.Y. Slip Op. 02697

The PEOPLE of the State of New York, Respondent

v.Andre SCOTT, Defendant–Appellant.

5511/09, 14665, 1466

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

March 31, 2015.

Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

TOM, J.P., ANDRIAS, SAXE, MANZANET–DANIELS, KAPNICK, JJ.

Opinion

Judgment, Supreme Court, New York County (Analisa Torres, J.), rendered April 14, 2011, convicting defendant, after a nonjury trial, of rape in the first degree, assault in the second degree, two counts of assault in the third degree, and two counts of aggravated harassment in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously affirmed. Order, same court (Abraham L. Clott, J.), entered January 9, 2014, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the court's credibility determinations, including its evaluation of the victim's delay in reporting the rape and any inconsistencies in her testimony.

The court properly denied defendant's CPL 440.10 motion, alleging a violation of the People's disclosure obligations. After defendant's conviction, the People disclosed a brief portion of a videotape that was made by a television network for a documentary film. In the videotape, two prosecutors discuss defendant's case, and express opinions on the anticipated difficulty of obtaining a conviction. In particular, a prosecutor expresses the opinion that the victim was “slow,” and may not have understood that defendant's conduct constituted rape. To the extent that these comments could be viewed as a source of impeachment material, we find that there was no reasonable possibility that timely disclosure would have affected the outcome (see e.g. People v. Fuentes, 12 N.Y.3d 259, 263–265, 879 N.Y.S.2d 373, 907 N.E.2d 286 [2009] ). This information was similar to impeachment material available to defendant at trial, including a document he actually used in cross-examination. Furthermore, the undisclosed video clip had little or no probative value on the issue of whether defendant actually had forcible sexual intercourse with the victim, and his claim that this material could have led to significant impeachment is speculative (see People v. Garrett, 23 N.Y.3d 878, 891–892, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014] ).

Defendant's claim that the court should have admitted a recording containing his own exculpatory statement is unpreserved and expressly waived, and we decline to review it in the interest of justice. To the extent that defendant sought admission of the statement, he abandoned that request and accepted a different remedy offered by the court. As an alternate holding, we find that defendant was not entitled to introduce his self-serving statement, and that, unlike the situation in People v. Carroll, 95 N.Y.2d 375, 385–387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000], the People did not open the door to admission of the statement.

Defendant failed to preserve his constitutional challenge to former Penal Law § 240.30(1)(a), which has been declared unconstitutional (see People v. Golb, 23 N.Y.3d 455, 467–468, ...