Opinion
1106 KA 18-01872
03-19-2021
The PEOPLE of the State of New York, Respondent, v. David RATH, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of attempted rape in the first degree under the fifth count of the indictment and dismissing that count of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of three counts of predatory sexual assault against a child ( Penal Law § 130.96 ), two counts of attempted rape in the first degree (§§ 110.00, 130.35 [3]), and one count of endangering the welfare of a child (§ 260.10 [1]). Defendant's contention that he was deprived of a fair trial by prosecutorial misconduct is not preserved for our review (see People v. Fick , 167 A.D.3d 1484, 1485, 90 N.Y.S.3d 421 [4th Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019] ). In any event, we conclude that it is without merit. There was no improper conduct by the prosecutor in questioning a forensic biologist regarding her analysis of the DNA evidence in the case and, viewing the prosecutor's summation as a whole, we conclude that the prosecutor did not mischaracterize the probativeness of that evidence (see generally People v. Wright , 25 N.Y.3d 769, 780-782, 16 N.Y.S.3d 485, 37 N.E.3d 1127 [2015] ). To the extent that there was any mischaracterization during summation, it " ‘did not rise to the flagrant and pervasive level of misconduct [that] would deprive defendant of due process’ " ( People v. Glass , 150 A.D.3d 1408, 1411, 55 N.Y.S.3d 469 [3d Dept. 2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ). Additionally, the prosecutor did not impermissibly vouch for the credibility of the victim but rather made a fair response to defense counsel's summation, in which defense counsel attacked the victim's credibility (see People v. Graham , 174 A.D.3d 1486, 1489, 105 N.Y.S.3d 756 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 759, 138 N.E.3d 488 [2019] ; Fick , 167 A.D.3d at 1485, 90 N.Y.S.3d 421 ; People v. Roman , 85 A.D.3d 1630, 1632, 925 N.Y.S.2d 310 [4th Dept. 2011], lv denied 17 N.Y.3d 821, 929 N.Y.S.2d 810, 954 N.E.2d 101 [2011] ). We reject defendant's further contention that the prosecutor mischaracterized the testimony of the victim and a nurse but, even if the prosecutor had, the challenged remark was not so egregious as to deprive defendant of a fair trial (see People v. Burton , 175 A.D.3d 1847, 1847-1848, 107 N.Y.S.3d 757 [4th Dept. 2019], lv denied 34 N.Y.3d 1075, 116 N.Y.S.3d 165, 139 N.E.3d 823 [2019] ; People v. Ali , 89 A.D.3d 1412, 1414, 932 N.Y.S.2d 277 [4th Dept. 2011], lv denied 18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128 [2012] ). Based on our determination that the challenged conduct of the prosecutor either did not constitute misconduct or did not deprive defendant of a fair trial, we reject defendant's further contention that he received ineffective assistance of counsel based on defense counsel's failure to object to the alleged misconduct (see People v. Lively , 163 A.D.3d 1466, 1468-1469, 82 N.Y.S.3d 671 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ; People v. Lyon , 77 A.D.3d 1338, 1339, 908 N.Y.S.2d 291 [4th Dept. 2010], lv denied 15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ).
We reject defendant's contention that County Court's evidentiary rulings deprived him of a fair trial. The court properly allowed the victim's aunt to testify that the victim told her that defendant had raped her. The victim made that disclosure at the first suitable opportunity after the abuse occurred, and the testimony was therefore admissible under the prompt outcry exception to the hearsay rule (see People v. Peckham , 8 A.D.3d 1121, 1121-1122, 778 N.Y.S.2d 629 [4th Dept. 2004], lv denied 3 N.Y.3d 679, 784 N.Y.S.2d 18, 817 N.E.2d 836 [2004] ; see generally People v. Rosario , 17 N.Y.3d 501, 511, 934 N.Y.S.2d 59, 958 N.E.2d 93 [2011] ; People v. McDaniel , 81 N.Y.2d 10, 16-17, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993] ). Contrary to defendant's contention, the aunt did not give impermissible details of the incident (see McDaniel , 81 N.Y.2d at 17-18, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; People v. Gross , 172 A.D.3d 741, 744, 99 N.Y.S.3d 367 [2d Dept. 2019], lv denied 33 N.Y.3d 1105, 106 N.Y.S.3d 692, 130 N.E.3d 1302 [2019] ; People v. Garrow , 126 A.D.3d 1362, 1363, 5 N.Y.S.3d 648 [4th Dept. 2015] ). The court also properly allowed a nurse to testify regarding statements made by the victim during the sexual assault examination inasmuch as the majority of those statements fell within the exception to the hearsay rule of statements relevant to medical diagnosis or treatment (see People v. Barnes , 140 A.D.3d 443, 443, 33 N.Y.S.3d 234 [1st Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 256, 66 N.E.3d 2 [2016] ; People v. Mirabella , 126 A.D.3d 1367, 1367, 5 N.Y.S.3d 650 [4th Dept. 2015], lv denied 25 N.Y.3d 1168, 15 N.Y.S.3d 300, 36 N.E.3d 103 [2015] ; see generally People v. Ortega , 15 N.Y.3d 610, 617-618, 917 N.Y.S.2d 1, 942 N.E.2d 210 [2010] ). To the extent that some of the statements went beyond that exception, defendant was not deprived of a fair trial because the error was harmless (see Ortega , 15 N.Y.3d at 619-620, 917 N.Y.S.2d 1, 942 N.E.2d 210 ). The victim gave the same description of the incidents during her testimony as she gave in her statements to the nurse. The evidence against defendant was overwhelming, and there was no significant probability that, had the error not occurred, the outcome of the trial would have been different (see generally People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). Defendant's contention that the court erred in allowing a witness to give impermissible opinion testimony is not preserved for our review (see People v. Ukasoanya , 101 A.D.3d 911, 913, 957 N.Y.S.2d 153 [2d Dept. 2012], lv denied 21 N.Y.3d 1020, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ). In any event, that contention is without merit because the witness did not give opinion testimony.
We agree with defendant, and the People properly concede, that the evidence is legally insufficient to support the conviction of attempted rape in the first degree under the fifth count of the indictment. Although defendant did not preserve that issue for our review, we exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). The People alleged in their bill of particulars under count five of the indictment that defendant attempted to engage in sexual intercourse with the victim after striking her in the face. The victim, however, did not testify to any attempted rape that occurred after defendant punched her in the eye. We therefore modify the judgment by reversing the conviction of attempted rape in the first degree under count five of the indictment and dismissing that count.
Defendant failed to preserve for our review his contention that the remaining count of attempted rape in the first degree under count four of the indictment was rendered duplicitous by the trial testimony (see People v. Allen , 24 N.Y.3d 441, 449-450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ; People v. Box , 145 A.D.3d 1510, 1512, 44 N.Y.S.3d 645 [4th Dept. 2016], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017] ), nor did he preserve his related contention that the prosecutor elicited evidence of uncharged crimes (see People v. Benton , 115 A.D.2d 916, 917, 496 N.Y.S.2d 813 [3d Dept. 1985] ). Defendant also failed to preserve for our review his contention that the People impermissibly changed the theory of endangering the welfare of a child as set forth in the bill of particulars (see generally Allen , 24 N.Y.3d at 449-450, 999 N.Y.S.2d 350, 24 N.E.3d 586 ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant contends that the court erred in refusing to suppress the cell phone recovered from his person at the time of his arrest because the search warrant application was not supported by probable cause inasmuch as it did not allege that the cell phone actually belonged to him. That contention is not preserved for our review (see People v. Navarro , 158 A.D.3d 1242, 1243-1244, 71 N.Y.S.3d 297 [4th Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ), and we conclude that it is without merit in any event. Search warrant applications are not to be read "hypertechnically and may be ‘accorded all reasonable inferences’ " ( People v. Robinson , 68 N.Y.2d 541, 552, 510 N.Y.S.2d 837, 503 N.E.2d 485 [1986] ; see generally People v. Wright , 34 A.D.3d 1274, 1275, 823 N.Y.S.2d 812 [4th Dept. 2006], lv denied 8 N.Y.3d 886, 832 N.Y.S.2d 498, 864 N.E.2d 628 [2007] ). We conclude that it was reasonable to infer that the cell phone in the possession of the police belonged to defendant based on the allegations in the search warrant application.
Finally, the sentence is not unduly harsh or severe.