Opinion
582 KA 17-00968
08-22-2019
The PEOPLE of the State of New York, Respondent, v. Richard BAEZ, Defendant–Appellant.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of rape in the first degree and dismissing count one of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree ( Penal Law § 130.35[1] ), and two counts each of predatory sexual assault against a child (§ 130.96) and predatory sexual assault (§ 130.95[2] ). We reject defendant's contention that he was subjected to custodial interrogation by Rochester police investigators who did not provide Miranda warnings and that County Court (Ciaccio, J.) therefore erred in refusing to suppress the statements that he made to them. "In determining whether a defendant was in custody for Miranda purposes, ‘[t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position’ " ( People v. Kelley, 91 A.D.3d 1318, 1318, 937 N.Y.S.2d 514 [4th Dept. 2012], lv denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 [2012], quoting People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ; see People v. Thomas, 166 A.D.3d 1499, 1500, 87 N.Y.S.3d 431 [4th Dept. 2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 616, 121 N.E.3d 244 [2019] ). Here, upon review of the relevant factors (see People v. Lunderman, 19 A.D.3d 1067, 1068–1069, 796 N.Y.S.2d 481 [4th Dept. 2005], lv denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ) and giving due deference to the hearing court's credibility determinations (see People v. Clark, 136 A.D.3d 1367, 1368, 25 N.Y.S.3d 485 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 [2016] ), we conclude that "the evidence at the Huntley hearing establishes that defendant was not in custody when he made the statements, and thus Miranda warnings were not required" ( People v. Bell–Scott, 162 A.D.3d 1558, 1559, 78 N.Y.S.3d 846 [4th Dept. 2018], lv denied 32 N.Y.3d 1169, 97 N.Y.S.3d 614, 121 N.E.3d 242 [2019] ; see People v. Rounds, 124 A.D.3d 1351, 1352, 999 N.Y.S.2d 647 [4th Dept. 2015], lv denied 25 N.Y.3d 1077, 12 N.Y.S.3d 628, 34 N.E.3d 379 [2015] ). Specifically, the evidence establishes, inter alia, that defendant was told at the start of the interview that he was not under arrest and would be going home that day (see Bell–Scott, 162 A.D.3d at 1559, 78 N.Y.S.3d 846 ; People v. Cordato, 85 A.D.3d 1304, 1309, 924 N.Y.S.2d 649 [3d Dept. 2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ), and the recording of the interview belies defendant's contention that he was in handcuffs when he was placed in the interview room. Defendant concedes that he indeed was not arrested at the time of the interview, and that he was given a ride home later that day. We reject defendant's contention that, because a police officer testified that defendant was not free to leave during transport to the police station, the court erred in concluding that defendant was not in custody. A police officer's subjective belief " ‘has no bearing on the question whether a suspect was in custody at a particular time ... [and] the subjective intent of the officer ... is irrelevant’ where, as here, there is no evidence that such subjective intent was communicated to the defendant" ( Thomas, 166 A.D.3d at 1500, 87 N.Y.S.3d 431 ). Contrary to defendant's further contention, Miranda warnings were not required before the investigators asked pointed questions. It is well settled that "both the elements of police ‘custody’ and police ‘interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda " ( People v. Huffman, 41 N.Y.2d 29, 33, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ; see People v. Anthony, 85 A.D.3d 1634, 1635, 925 N.Y.S.2d 313 [4th Dept. 2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ), and the element of custody was absent here. We have considered defendant's remaining contentions with respect to the statements that he gave to the police, and we conclude that they lack merit. We also reject defendant's contention that reversal is required based on the actions of the trial court (Morse, A.J.) with respect to the expert who testified for the People regarding the child sexual abuse accommodation syndrome (CSAAS). Assuming, arguendo, that defense counsel signed and filed a motion seeking an adjournment of the trial due to the untimely nature of the People's notice of intent to offer that expert testimony, we note that defense counsel "did nothing to call the court's attention to its failure to rule on such application[ ], and thus he abandoned the issue" ( People v. Ramos, 35 A.D.3d 247, 247, 825 N.Y.S.2d 222 [1st Dept. 2006], lv denied 8 N.Y.3d 924, 926, 834 N.Y.S.2d 514, 516, 866 N.E.2d 460, 462 [2007]; see People v. Green, 19 A.D.3d 1075, 1075, 796 N.Y.S.2d 208 [4th Dept. 2005], lv denied 5 N.Y.3d 828, 804 N.Y.S.2d 43, 837 N.E.2d 742 [2005] ; see also People v. Graves, 85 N.Y.2d 1024, 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220 [1995] ). Defendant's challenge to the court's instructions to the jury during that witness's testimony is not preserved for our review inasmuch as the court "provided [ ] curative instruction[s] that, in the absence of an objection or a motion for a mistrial, ‘must be deemed to have corrected the error to the defendant's satisfaction’ " ( People v. Szatanek, 169 A.D.3d 1448, 1449, 92 N.Y.S.3d 516 [4th Dept. 2019], lv denied 33 N.Y.3d 981, 101 N.Y.S.3d 260, 124 N.E.3d 749 [2019], quoting People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ; see People v. Marvin, 162 A.D.3d 1744, 1745, 80 N.Y.S.3d 787 [4th Dept. 2018], lv denied 32 N.Y.3d 1066, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ). Defendant also failed to preserve his contention that the court erred in curtailing defense counsel's questioning of that witness. Although the court sustained the prosecutor's objection to one of defense counsel's questions of that witness and provided an immediate and thorough instruction to the jury, it then informed defense counsel that it was "not saying you can't ask the exact same question again." The issue was abandoned by defendant's failure to pursue the line of questioning (see generally Graves, 85 N.Y.2d at 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220 ; People v. Carrasquillo, 85 A.D.3d 1618, 1619, 925 N.Y.S.2d 743 [4th Dept. 2011], lv denied 17 N.Y.3d 814, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ). We further conclude that defendant failed to preserve for our review his contention that the court interfered unnecessarily during the questioning of certain witnesses, thereby depriving him of a fair trial (see People v. Paulk, 107 A.D.3d 1413, 1415, 967 N.Y.S.2d 310 [4th Dept. 2013], lv denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 [2013], reconsideration denied 22 N.Y.3d 1157, 984 N.Y.S.2d 641, 7 N.E.3d 1129 [2014] ; People v. Zeito, 302 A.D.2d 923, 924, 753 N.Y.S.2d 914 [4th Dept. 2003], lv denied 99 N.Y.2d 634, 760 N.Y.S.2d 116, 790 N.E.2d 290 [2003] ). Contrary to defendant's contention, his CPL 330.30 motion did not preserve his contentions for our review (see generally People v. Malave, 52 A.D.3d 1313, 1314, 860 N.Y.S.2d 365 [4th Dept. 2008], lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ), and 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 further contends that the rape in the first degree count should be dismissed because it is an inclusory concurrent count of the predatory sexual assault counts. The People correctly concede that rape in the first degree is an inclusory concurrent count of predatory sexual assault, and thus that part of the judgment convicting defendant of rape in the first degree must be reversed and count one of the indictment dismissed (see People v. Russell, 71 A.D.3d 1589, 1590, 896 N.Y.S.2d 795 [4th Dept. 2010], lv denied 15 N.Y.3d 756, 906 N.Y.S.2d 829, 933 N.E.2d 228 [2010] ). We therefore modify the judgment accordingly. Contrary to defendant's additional contention, however, that dismissal does not require dismissal of the predatory sexual assault against a child counts. Penal Law § 130.96 requires that the defendant commit the crime of rape in the first degree, not that he or she be convicted of it, and thus a defendant may be convicted of predatory sexual assault against a child regardless of whether he or she is convicted of the underlying offense (see e.g. People v. Lawrence, 81 A.D.3d 1326, 1326, 916 N.Y.S.2d 393 [4th Dept. 2011], lv denied 17 N.Y.3d 1326, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] ).
Defendant also failed to preserve his contention that the court failed to respond properly to a jury note requesting further instructions on the first three counts of the indictment, because the court did not read the instructions on the lesser included offenses regarding those counts. In any event, there is no error "in denying a[n] instruction on [a lesser included offense] in the supplemental charge to the jury inasmuch as the jury did not ask for reinstruction on that issue but only on the elements of the crime[s] charged" ( People v. Allen, 69 N.Y.2d 915, 916, 516 N.Y.S.2d 199, 508 N.E.2d 934 [1987] ).
Contrary to defendant's contention, he was not deprived of effective assistance of counsel by defense counsel's failure to again seek an instruction on any lesser included offenses when the court reinstructed the jurors on the elements of the first three counts. With respect to a claim of ineffective assistance of counsel, "it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). The determination whether to seek a jury charge on a lesser included offense is a quintessentially tactical determination (see generally People v. Tineo–Santos, 160 A.D.3d 465, 466–467, 74 N.Y.S.3d 216 [1st Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] ), and defendant failed to show the absence of a strategic basis for defense counsel's choice not to again demand an instruction regarding the lesser charges (see People v. Collins, 167 A.D.3d 1493, 1498, 90 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1202, 99 N.Y.S.3d 191, 122 N.E.3d 1104 [2019] ; People v. Trotman, 154 A.D.3d 1332, 1333, 61 N.Y.S.3d 803 [4th Dept. 2017], lv denied 30 N.Y.3d 1109, 77 N.Y.S.3d 8, 101 N.E.3d 394 [2018] ). We also reject defendant's contention that he was otherwise denied effective assistance of counsel. Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, including defendant's acquittal on numerous counts in the indictment, we conclude that defendant received meaningful representation (see generally People v. Flores, 84 N.Y.2d 184, 186–187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Defendant failed to preserve for our review his contention that his conviction of rape in the first degree is not supported by legally sufficient evidence with respect to the element of forcible compulsion (see Penal Law § 130.35[1] ; People v. Hryckewicz, 221 A.D.2d 990, 990, 634 N.Y.S.2d 297 [4th Dept. 1995], lv denied 88 N.Y.2d 849, 644 N.Y.S.2d 695, 667 N.E.2d 345 [1996] ), inasmuch as defendant failed to set forth that specific ground in his general motion for a trial order of dismissal (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, we reject defendant's contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, contrary to defendant's contention, 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] ), we conclude that 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 ). Defendant's contentions are based on the credibility of the two victims, and we conclude that the "[i]ssues of credibility ..., including the weight to be given the backgrounds of the People's witnesses and inconsistencies in their testimony, were properly considered by the jury and there is no basis for disturbing its determinations" ( People v. Garrick, 11 A.D.3d 395, 396, 783 N.Y.S.2d 371 [1st Dept. 2004], lv denied 4 N.Y.3d 744, 790 N.Y.S.2d 656, 824 N.E.2d 57 [2004], reconsideration denied 4 N.Y.3d 798, 795 N.Y.S.2d 174, 828 N.E.2d 90 [2005] ).
Defendant further contends that the court erred in relying on materially untrue information in imposing sentence, i.e., an incorrect statement of the age of one victim and a misstatement of the charges in the presentence report. With respect to the court's statement that one victim was several months younger than her actual age at the time of one offense, defendant failed to establish that the discrepancy, which was no more than a few months and had no statutory impact on the sentence, was material. Defendant therefore failed to establish that he was "sentenced on the basis of materially untrue assumptions or misinformation" ( People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 [1997] [internal quotation marks omitted] ). Furthermore, even assuming, arguendo, that the presentence report contained " ‘materially untrue’ facts or misinformation" ( People v. Hansen, 99 N.Y.2d 339, 345, 756 N.Y.S.2d 122, 786 N.E.2d 21 [2003] ), we conclude that the record, including the court's statements during resentencing when it reimposed the same sentence after discovering an error regarding postrelease supervision, establishes that the sentence was not based upon that misinformation.