Opinion
642 KA 22-00189
10-06-2023
The PEOPLE of the State of New York, Respondent, v. Jahlil COOLEY, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of predatory sexual assault against a child ( Penal Law § 130.96 ), predicated on commission of course of sexual conduct against a child in the first degree (see § 130.75 [1] [a]), sexual abuse in the first degree (§ 130.65 [4]), and two counts of endangering the welfare of a child (§ 260.10 [1]).
Defendant contends that the conviction is not supported by legally sufficient evidence. We reject that contention (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Although neither child victim identified defendant in court, both child victims identified defendant by name and specifically explained their respective relationships to defendant, and the jury was entitled to credit that testimony (see generally People v. McKenzie , 2 A.D.3d 348, 348, 768 N.Y.S.2d 816 [1st Dept. 2003], lv denied 2 N.Y.3d 764, 778 N.Y.S.2d 782, 811 N.E.2d 44 [2004] ). Moreover, defendant failed to preserve for our review his specific contention that there is legally insufficient evidence that he perpetrated the charged sexual conduct over a period not less than three months in duration (see Penal Law § 130.75 [1] ), inasmuch as he failed to move for a trial order of dismissal on that basis (see generally People v. Bassett , 55 A.D.3d 1434, 1438, 866 N.Y.S.2d 473 [4th Dept. 2008], lv denied 11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441 [2009] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Contrary to defendant's further contention, we conclude that, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Arnold , 107 A.D.3d 1526, 1528, 967 N.Y.S.2d 801 [4th Dept. 2013], lv denied 22 N.Y.3d 953, 977 N.Y.S.2d 185, 999 N.E.2d 550 [2013] ).
Defendant additionally contends that County Court erred in refusing to issue a subpoena for counseling records of one of the victims. Even assuming, arguendo, that defendant's contention is fully preserved for our review, we reject that contention. In determining whether to grant access to otherwise confidential records and data, the court must balance the competing interests of confidentiality and the defendant's rights to compulsory process and confrontation (see People v. Gissendanner , 48 N.Y.2d 543, 548, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ; People v. Tirado , 109 A.D.3d 688, 688, 970 N.Y.S.2d 342 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013], reconsideration denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014], cert denied 574 U.S. 877, 135 S.Ct. 183, 190 L.Ed.2d 143 [2014] ), and the decision whether to issue a subpoena for such records is committed to the court's sound discretion (see Tirado , 109 A.D.3d at 688, 970 N.Y.S.2d 342 ). At the outset, we note that defendant's reliance on ( People v. Wildrick, 83 A.D.3d 1455, 1457, 920 N.Y.S.2d 540 [4th Dept. 2011], lv denied 17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106 [2011] ) is misplaced. Here, unlike in Wildrick , the court had previously issued subpoenas, conducted an in camera review, and provided defendant with copies of pertinent medical and school records. We further conclude that defendant did not set forth how the counseling records that he sought might be employed in a line of inquiry "beyond that of general credibility impeachment" ( Gissendanner , 48 N.Y.2d at 550, 423 N.Y.S.2d 893, 399 N.E.2d 924 ) or "point to specific facts demonstrating a reasonable likelihood ... that [he was] not engaged in a fishing expedition" ( People v. Kozlowski , 11 N.Y.3d 223, 242, 869 N.Y.S.2d 848, 898 N.E.2d 891 [2008], rearg denied 11 N.Y.3d 904, 873 N.Y.S.2d 265, 901 N.E.2d 759 [2009], cert denied 556 U.S. 1282, 129 S.Ct. 2775, 174 L.Ed.2d 272 [2009] ). Thus, defendant's application for a subpoena was "supported solely by speculation" ( People v. Reddick , 43 A.D.3d 1334, 1335, 843 N.Y.S.2d 201 [4th Dept. 2007], lv denied 10 N.Y.3d 815, 857 N.Y.S.2d 48, 886 N.E.2d 813 [2008] [internal quotation marks omitted]) and the court did not abuse its discretion in denying defendant's application (see Gissendanner , 48 N.Y.2d at 550, 423 N.Y.S.2d 893, 399 N.E.2d 924 ).
We reject defendant's further contention that the court erred in denying his request for a circumstantial evidence charge. "[W]here there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given" ( People v. Hardy , 26 N.Y.3d 245, 249, 22 N.Y.S.3d 377, 43 N.E.3d 734 [2015] ). A victim's testimony identifying a defendant as the perpetrator of a crime is direct evidence of guilt (see People v. James , 147 A.D.3d 1211, 1212-1213, 48 N.Y.S.3d 524 [3d Dept. 2017], lv denied 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 [2017] ; People v. Cruz , 41 A.D.3d 893, 896, 837 N.Y.S.2d 767 [3d Dept. 2007], lv denied 10 N.Y.3d 933, 862 N.Y.S.2d 340, 892 N.E.2d 406 [2008]). In light of the victims’ direct testimony, the court did not err in refusing to charge circumstantial evidence (see Hardy , 26 N.Y.3d at 251, 22 N.Y.S.3d 377, 43 N.E.3d 734 ).
Defendant additionally contends that the court erred in charging the jury on flight as consciousness of guilt. We reject that contention. While flight evidence is of "limited probative force," that "is no reason for its exclusion" ( People v. Yazum , 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263 [1963], rearg denied 15 N.Y.2d 679, 255 N.Y.S.2d 1027, 204 N.E.2d 217 [1964] ; see People v. Martinez , 298 A.D.2d 897, 899, 749 N.Y.S.2d 118 [4th Dept. 2002], lv denied 98 N.Y.2d 769, 752 N.Y.S.2d 10, 781 N.E.2d 922 [2002], cert denied 538 U.S. 963, 123 S.Ct. 1752, 155 L.Ed.2d 515 [2003], reh denied 539 U.S. 911, 123 S.Ct. 2266, 156 L.Ed.2d 126 [2003] ). Here, it is not disputed that once defendant knew that the victims had accused him, defendant boarded a bus alone for New York City. Under the circumstances, the court appropriately charged the jury on flight as consciousness of guilt (see People v. Jones , 213 A.D.3d 1279, 1280, 183 N.Y.S.3d 214 [4th Dept. 2023], lv denied 39 N.Y.3d 1155, 190 N.Y.S.3d 674, 211 N.E.3d 1127 [2023] ; People v. Jamison , 173 A.D.2d 341, 342, 569 N.Y.S.2d 709 [1st Dept. 1991], lv denied 78 N.Y.2d 955, 573 N.Y.S.2d 651, 578 N.E.2d 449 [1991] ) and gave an appropriate limiting instruction (see Martinez , 298 A.D.2d at 899, 749 N.Y.S.2d 118 ).
By failing to object during the prosecutor's summation, defendant failed to preserve for our review his contention that allegedly improper comments made by the prosecutor during summation deprived him of a fair trial (see People v. Graham , 171 A.D.3d 1566, 1570, 99 N.Y.S.3d 562 [4th Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 689, 130 N.E.3d 1299 [2019]). In any event, we conclude that the allegedly improper comments were a "fair response to the comments made by the defense or fair comment on the evidence," and therefore that defendant was not deprived of a fair trial by those remarks ( People v. Palmer , 204 A.D.3d 1512, 1514, 167 N.Y.S.3d 697 [4th Dept. 2022], lv denied 38 N.Y.3d 1190, 176 N.Y.S.3d 207, 197 N.E.3d 487 [2022] ). We thus further conclude that counsel's failure to object did not deprive defendant of effective assistance of counsel (see id. at 1514-1515, 167 N.Y.S.3d 697 ).
Contrary to defendant's further contention, the use of face coverings by prospective jurors did not deprive defendant "of the ability to meaningfully participate in jury selection" ( People v. Ramirez , 208 A.D.3d 897, 898, 173 N.Y.S.3d 659 [2d Dept. 2022], lv granted 39 N.Y.3d 1074, 183 N.Y.S.3d 798, 204 N.E.3d 434 [2023] ).
Finally, we conclude that defendant's sentence is not unduly harsh or severe.