Opinion
2015-03-20
The PEOPLE of the State of New York, Respondent, v. Todd C. MIRABELLA, Defendant–Appellant.
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.
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: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of two counts of sexual abuse in the first degree (Penal Law § 130.65[4] ), one count of criminal sexual act in the first degree (§ 130.50[4] ), and two counts of sexual abuse in the third degree (§ 130.55). 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), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We note that “[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829, lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ), and we perceive no reason to disturb the jury's resolution of those questions in this case.
We reject defendant's contention that he received ineffective assistance of counsel. Defendant contends that defense counsel should have objected when a physician who examined one of the complainants testified that the complainant had told him that there was “digital/genital contact as well as oral/genital” contact. Defendant contends that this constituted impermissible bolstering. We conclude that the testimony was permissible as an exception to the hearsay rule for statements relevant to diagnosis and treatment ( see People v. Spicola, 16 N.Y.3d 441, 451–453, 922 N.Y.S.2d 846, 947 N.E.2d 620, cert. denied ––– U.S. ––––, 132 S.Ct. 400, 181 L.Ed.2d 257). In addition, the physician's testimony served the nonhearsay purpose of “round[ing] out the narrative of the immediate aftermath of the ... disclosure” (id. at 453, 922 N.Y.S.2d 846, 947 N.E.2d 620; see People v. Ludwig, 24 N.Y.3d 221, 231–232, 997 N.Y.S.2d 351, 21 N.E.3d 1012). Inasmuch as the testimony was proper, defense counsel was not ineffective for failing to object to it ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Goley, 113 A.D.3d 1083, 1085, 977 N.Y.S.2d 847; People v. Dashnaw, 37 A.D.3d 860, 863, 828 N.Y.S.2d 697, lv. denied8 N.Y.3d 945, 836 N.Y.S.2d 555, 868 N.E.2d 238).
Defense counsel also was not ineffective for failing to seek a missing witness charge with respect to two witnesses, because “[t]here was no indication that the witness[es] would have provided noncumulative testimony favorable to the People” (People v. Smith, 118 A.D.3d 1492, 1493, 988 N.Y.S.2d 819; see People v. Myers, 87 A.D.3d 826, 828, 928 N.Y.S.2d 407, lv. denied17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029). Defendant has failed to demonstrate “ ‘the absence of strategic or other legitimate explanations' ” for defense counsel's failure to object to testimony that violated defendant's right of confrontation inasmuch as that testimony was favorable to defendant (Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; see People v. Reid, 71 A.D.3d 699, 700, 894 N.Y.S.2d 905, lv. denied15 N.Y.3d 756, 906 N.Y.S.2d 829, 933 N.E.2d 228). The prosecutor's “statements that the complainant[s] had no motive to lie constituted a fair response to defense counsel's summation, which attacked the complainant[s'] credibility,” and thus defense counsel was not ineffective for failing to object to those remarks on summation (People v. Marcus, 112 A.D.3d 652, 653, 975 N.Y.S.2d 771, lv. denied22 N.Y.3d 1140, 983 N.Y.S.2d 498, 6 N.E.3d 617; see People v. Hill, 82 A.D.3d 1715, 1716, 919 N.Y.S.2d 688, lv. denied17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804). We have considered defendant's remaining instances of alleged ineffective assistance of counsel and conclude that they are without merit. Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
We reject defendant's further contention that the court erred in denying his request for the complainants' school and therapy records without first conducting an in camera review of those records. Defendant had the burden of showing that those records “are relevant and material to facts at issue” (People v. Kozlowski, 11 N.Y.3d 223, 242, 869 N.Y.S.2d 848, 898 N.E.2d 891, rearg. denied11 N.Y.3d 904, 873 N.Y.S.2d 265, 901 N.E.2d 759, cert. denied556 U.S. 1282, 129 S.Ct. 2775, 174 L.Ed.2d 272). “The relevant and material facts in a criminal trial are those bearing upon ‘the unreliability of either the criminal charge or of a witness upon whose testimony it depends' ” ( id.). Here, defendant failed to meet his burden. He failed to “point to specific facts demonstrating a reasonable likelihood that such material may be disclosed” and instead was merely “engaged in a fishing expedition ” ( id.; see People v. Gissendanner, 48 N.Y.2d 543, 549–550, 423 N.Y.S.2d 893, 399 N.E.2d 924). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.