People v. Tarver

• Citation: 202 A.D.3d 1368,162 N.Y.S.3d 576
• Decision Date: 24 February 2022
• Docket Number: 107408
• Parties: The PEOPLE of the State of New York, Respondent, v. Keimar TARVER, Also Known as Kiermer Tarver and Kemar Tarver, Appellant.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1368

162 N.Y.S.3d 576

The PEOPLE of the State of New York, Respondent,

v.Keimar TARVER, Also Known as Kiermer Tarver and Kemar Tarver, Appellant.

107408

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

Calendar Date: January 6, 2022

Decided and Entered: February 24, 2022

Metcalf & Metcalf, PC, New York City (Steven A. Metcalf II of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

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

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered November 21, 2014, upon a verdict convicting defendant of the crimes of rape in the second degree, criminal sexual act in the second degree and endangering the welfare of a child.

As a result of an incident with a 14–year–old female, defendant was charged by indictment with multiple crimes. Following County Court's denial of his motion to suppress his statements to the police, a jury convicted defendant of rape in the second degree, criminal sexual act in the second degree and endangering the welfare of a child. The court sentenced him, as a violent predicate felony offender, to consecutive prison terms of six years and seven years, followed by 15 years of postrelease supervision, for his convictions of rape in the second degree and criminal sexual act in the second degree, respectively, and to a lesser concurrent term of incarceration on the remaining conviction. Defendant appeals.

"[A] defendant is not entitled as a matter of law to pretrial notice of the People's intention to offer [Molineux ] evidence ... or to a pretrial hearing on the admissibility of such evidence" ( People v. Small, 12 N.Y.3d 732, 733, 876 N.Y.S.2d 675, 904 N.E.2d 811 [2009] ; see People v. Strauss, 155 A.D.3d 1317, 1321, 64 N.Y.S.3d 771 [2017], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ; People v. Byrd, 152 A.D.3d 984, 989, 59 N.Y.S.3d 539 [2017] ). Although, to avoid unfairness, "a prosecutor seeking to introduce Molineux evidence should ask for a ruling out of the presence of the jury, and ... any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, just before the witness testifies[,] ... there is no requirement that such inquiry or ruling occur before trial commences" ( People v. Small, 12 N.Y.3d at 733, 876 N.Y.S.2d 675, 904 N.E.2d 811 [internal quotation marks and citation omitted]). On the morning that jury selection began, the People provided defendant and County Court with their Molineux/Ventimiglia application. In addition to several of defendant's prior bad acts, the application mentioned a prior sexual assault on a child but expressly noted that the People were merely providing notice and were not seeking to introduce evidence of that incident unless defendant opened the door. In response to court questioning, the People stated that they would submit a subsequent application to introduce testimony on that topic if necessary. The People never made such a request and no evidence of the incident was admitted at trial. Under these circumstances, the court was not required to perform any balancing test or issue a ruling regarding that incident as the court had done for the other prior bad acts listed in the People's application (see People v. McCloud, 121 A.D.3d 1286, 1291, 995 N.Y.S.2d 269 [2014], lv denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015] ; compare People v. Gaylord, 194 A.D.3d 1189, 1193, 148 N.Y.S.3d 526 [2021], lv denied 37 N.Y.3d 972, 150 N.Y.S.3d 698, 172 N.E.3d 810 [2021] ; People v. Moore, 59 A.D.3d 809, 811, 874 N.Y.S.2d 283 [2009] ).

Defendant's claims of prosecutorial misconduct are unpreserved for our review, as he failed to make contemporaneous or specific objections at the time of the allegedly improper statements (see People v. Morton, 198 A.D.3d 1176, 1180, 157 N.Y.S.3d 129 [2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 706, 181 N.E.3d 1134 [Jan. 31, 2022] ; People v. Terry, 196 A.D.3d 840, 847, 149 N.Y.S.3d 705 [2021], lvs denied 37 N.Y.3d 1027, 1030, 153 N.Y.S.3d 411, 432, 175 N.E.3d 436, 457 [2021]; People v. Rodriguez, 195 A.D.3d 1237, 1241, 148 N.Y.S.3d 538 [2021], lv denied 37 N.Y.3d 1061, 154 N.Y.S.3d 643, 176 N.E.3d 679 [2021] ). To the extent that defendant alleges that he was therefore deprived of meaningful representation, counsel is not ineffective for failing to make objections that likely would have been futile (see People v. Underdue, 89 A.D.3d 1132, 1134, 931 N.Y.S.2d 784 [2011], lv denied 19 N.Y.3d 969, 950 N.Y.S.2d 121, 973 N.E.2d 219 [2012] ). Contrary to defendant's argument, we do not find that the prosecutor's summation misstated the evidence relative to the DNA expert's testimony.

Defendant further asserts that counsel was ineffective in multiple other ways. Assertions that counsel failed to investigate the case, consult a DNA expert, disclose a conflict of interest and properly advise defendant regarding his ability to testify at the suppression hearing are not properly before this Court, and would more properly be pursued through a CPL article 440 motion, as they are based on information outside the record (see People v. Drake, 179 A.D.3d 1221, 1222, 117 N.Y.S.3d 353 [2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020] ; People v. Patterson, 177 A.D.3d 1027, 1028, 109 N.Y.S.3d 925 [2019], lv denied 34 N.Y.3d 1131, 118 N.Y.S.3d 525, 141 N.E.3d 481 [2020] ; People v. White, 164 A.D.3d 959, 960, 82 N.Y.S.3d 247 [2018] ). Counsel's decision to not demand a ruling on the unaddressed portion of the Molineux proffer may have been strategic, either to await a formal application for use of that incident or to avoid an unfavorable decision. Although counsel opened the door to allowing brief mention of defendant's prior criminal history and incarceration, counsel's questions appear to be part of a strategy to attack the police investigation. Viewing the representation in its totality, counsel made pretrial motions, cross-examined the People...