People v. Sposito

• Decision Date: 22 April 2021
• Docket Number: 111155
• Citation: 193 A.D.3d 1236,147 N.Y.S.3d 195
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph SPOSITO, Appellant.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 1236

147 N.Y.S.3d 195

The PEOPLE of the State of New York, Respondent,

v.Joseph SPOSITO, Appellant.

111155

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

Calendar Date: January 5, 2021

Decided and Entered: April 22, 2021

Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City (Donna Aldea of counsel), for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal, by permission, from an order of the Supreme Court (McDonough, J.), entered April 16, 2019 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of rape in the first degree and criminal sexual act in the first degree, after a hearing.

Defendant faced charges following his sexual encounter with a victim who was allegedly physically helpless and incapable of consent due to her intoxication. Following a 2012 jury trial, he was convicted of rape in the first degree and criminal sexual act in the first degree. His subsequent motion for forensic DNA testing pursuant to CPL 440.30(1–a) was denied, as was his motion to vacate the judgment of conviction upon the ground that he was denied the effective assistance of counsel (see CPL 440.10[h] ). Upon appeal, this Court affirmed the judgment of conviction and the denial of defendant's CPL 440.30 motion, but found that a hearing was required to assess the claims in his CPL 440.10 motion ( 140 A.D.3d 1308, 1312–1313, 32 N.Y.S.3d 736 [2016], affd 30 N.Y.3d 1110, 70 N.Y.S.3d 156, 93 N.E.3d 881 [2018] ). Supreme Court conducted that hearing upon remittal, then denied the motion. Defendant appeals by permission.

A criminal defendant is guaranteed the effective assistance of counsel by both the U.S. and N.Y. Constitutions and, pursuant to the more stringent standard under the N.Y. Constitution, receives it when "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" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; see U.S. Const. 6th Amend; NY Const, art I, § 6 ; People v. Clark, 28 N.Y.3d 556, 562–563, 69 N.E.3d 604 [2016] ; People v. Dickinson, 182 A.D.3d 783, 789, 122 N.Y.S.3d 797 [2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 408, 152 N.E.3d 1210 [2020] ). It is a defendant's burden to show that meaningful representation was not provided and, further, that there were no "strategic or other legitimate explanations — i.e., those that would be consistent with the decisions of a reasonably competent attorney — for the alleged deficiencies of counsel" ( People v. Maffei, 35 N.Y.3d 264, 269, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] [internal quotation marks and citation omitted]; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Green, 190 A.D.3d 1094, 1100, 139 N.Y.S.3d 446 [2021] ; People v. Bowen, 185 A.D.3d 1219, 1220–1221, 127 N.Y.S.3d 210 [2020] ). Following our review of the record here, and deferring to Supreme Court's implicit determination that trial counsel's testimony at the CPL article 440 hearing was credible (see People v. Nelson, 171 A.D.3d 1251, 1253, 97 N.Y.S.3d 779 [2019], lv denied 36 N.Y.3d 1058, 141 N.Y.S.3d 774, 165 N.E.3d 700 [2021] ), we conclude that defendant failed to make that showing. We therefore affirm.

Defendant claims that trial counsel was ineffective in waiving a suppression hearing and in failing to consult with or call experts to rebut the People's expert proof, and some discussion of the facts is needed to place those arguments into context. The crimes for which defendant was convicted arose out of a sexual encounter with the victim at a mutual acquaintance's home, where they had gone after an evening of heavy drinking, and it was alleged that the victim was so intoxicated as to be "incapable of consent by reason of being physically helpless" ( Penal Law §§ 130.35[2] ; 130.50[2]). The victim was transported to the hospital after the encounter, where she was found to have a high blood alcohol concentration and physical indicia of rough, potentially nonconsensual, vaginal and anal sex. Not long after that, investigators interviewed defendant and others who had been at the residence. Defendant, who was not Mirandized before he engaged in that recorded interview, consistently maintained that the victim was conscious and willing throughout the sexual encounter. After he was Mirandized hours into the interview and investigators challenged aspects of his account, defendant altered his account by, among other things, retracting his initial claim that the victim had invited him into the room where she was resting and clarifying that he asked to join her in bed several times without response before she "murmur[ed]" her assent. Defendant then invoked his right to counsel and terminated the interview.¹

With that background in mind, we turn to trial counsel's decision to waive a Huntley hearing and allow defendant's recorded statements into evidence at trial. A defense attorney is not obliged to seek suppression of a defendant's statements, and it is a "rare case where a defendant shows the absence of a strategic or legitimate explanation in counsel's strategy not to" do so ( People v. Zeh, 144 A.D.3d 1395, 1396, 42 N.Y.S.3d 373 [2016], lv denied 29 N.Y.3d 954, 54 N.Y.S.3d 384, 76 N.E.3d 1087 [2017] ; see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). It is initially apparent that counsel did not overlook the issue, as he was aware that there was an arguable basis to suppress the recorded statements and sought that relief as part of his pretrial omnibus motion. Counsel explained that this was not because he believed that suppression was likely, but rather because he knew that the motion would force the People to go beyond their usual "stingy" discovery practices and turn over grand jury testimony and other items prior to the suppression hearing.² Indeed, counsel testified that he did not want the statements suppressed because he believed that they would benefit the defense at trial, which is why he waived the Huntley hearing on the morning it was to occur after receiving the sought-after discovery and discussing the matter with defendant.

In support of his belief that the admission of the statements would be beneficial, counsel explained that defendant had maintained throughout the interview that the victim was an active and willing participant in the sexual encounter and that, if the statements were suppressed, the jury would only hear about the changes that defendant had made to his story when, as expected, he testified at trial and was cross-examined about them (see e.g. People v. Martin, 8 A.D.3d 883, 886, 780 N.Y.S.2d 640 [2004], lv denied 3 N.Y.3d 677, 784 N.Y.S.2d 16, 817 N.E.2d 834 [2004] ). In contrast, if the entire interview were put into evidence with appropriate redactions, the defense would benefit from having the jury repeatedly hear defendant's exculpatory version of events and be assured that almost all of his account had remained consistent over time. Counsel further believed that any damage caused by the jury seeing defendant walk back aspects of his story could be ameliorated, reasoning that jurors could be persuaded to sympathize with a "desperate" and "confused" defendant who wavered on a few points after prolonged, increasingly hostile questioning, but remained "adamant that everything that had just happened was consensual and [that the victim] was awake for it." The trial record reflects that counsel ably pursued that strategy and, in our view, defendant gave no compelling reason to doubt that "counsel's decision to waive a Huntley hearing was legitimately based upon ... the consistency of defendant's statement to the police, and coincided with the defense pursued at trial" ( People v. Umana, 143 A.D.3d 1174, 1175, 40 N.Y.S.3d 596 [2016], lv denied 29 N.Y.3d 1037, 62 N.Y.S.3d 306, 84 N.E.3d 978 [2017] ; see People v. De Mauro, 48 N.Y.2d 892, 893–894, 424 N.Y.S.2d 884, 400 N.E.2d 1336 [1979] ; People v. Rodabaugh, 26 A.D.3d 598, 599–600, 809 N.Y.S.2d 636 [2006] ; compare People v. Carnevale, 101 A.D.3d 1375, 1381, 957 N.Y.S.2d 746 [2012] ).

Next, although defendant complains that counsel failed to consult with experts or present their testimony to rebut proof related to the victim's sexual assault examination, her degree of intoxication and the presence of defendant's genetic material in her anus, the hearing evidence reflected that counsel "had a strategic reason for [that] failure" ( People v. Gross, 26 N.Y.3d 689, 694, 27 N.Y.S.3d 459, 47 N.E.3d 738 [2016] ; see People v. Little, 192 A.D.3d 408, 142 N.Y.S.3d 62, 2021 N.Y. Slip Op. 01235, *1 [2021] ; People v. Olson, 162 A.D.3d 1249, 1251, 78 N.Y.S.3d 773 [2018], lv denied 32 N.Y.3d 1067, 89 N.Y.S.3d 121, 113 N.E.3d 955 [2018] ; People v. Auleta, 82 A.D.3d 1417, 1419–1420, 919 N.Y.S.2d 222 [2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ). To reiterate, defendant and the victim indisputably had a sexual encounter, and the charges against defendant alleged that he had anal and vaginal sex with a victim who was physically helpless and, as a result, was unable to consent (see Penal Law §§ 130.00[7] ; 130.35[2]; 130.50[2]). A finding that the victim was alert and willing would have therefore resulted in defendant's acquittal on all charges, and counsel made the tactical decision to focus on that issue to the exclusion of murkier battles over whether the alleged anal sexual conduct had occurred or whether some of the conclusions drawn by the People's experts were open to question. Counsel explained that he chose that course because of emotionally charged testimony from the victim, the sexual assault nurse examiner and others,...