Opinion
527 KA 18-00862
06-12-2020
The PEOPLE of the State of New York, Respondent, v. David L. COTTON, Defendant-Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND WINSLOW, 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 after a jury trial of burglary in the first degree ( Penal Law § 140.30 [2] ), sexual abuse in the first degree (§ 130.65 [1] ), aggravated criminal contempt (§ 215.52 [1] ), criminal contempt in the second degree (§ 215.50 [3] ), and aggravated harassment in the second degree (§ 240.30 [2] ). We affirm.
County Court properly granted the People's Batson challenge to defendant's exercise of a peremptory challenge during jury selection. A trial court's determination whether a proffered gender-neutral reason is pretextual is entitled to great deference (see People v. Hernandez , 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ; People v. Linder , 170 A.D.3d 1555, 1558, 95 N.Y.S.3d 681 [4th Dept. 2019], lv denied 33 N.Y.3d 1071, 105 N.Y.S.3d 12, 129 N.E.3d 332 [2019] ), and we perceive no reason to disturb the court's determination that the reasons proffered by defense counsel for the challenge in question were pretextual. Here, the People's showing that defendant had used his 12 prior peremptory challenges to strike only female jurors—especially in the context of a sexual assault trial involving a male defendant and a female victim—constituted strong evidence that defendant's proffered gender-neutral reasons for the strike were pretextual (see People v. Hecker , 15 N.Y.3d 625, 660, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010], cert denied 563 U.S. 947, 131 S.Ct. 2117, 179 L.Ed.2d 911 [2011] ; People v. Murphy , 79 A.D.3d 1451, 1452, 913 N.Y.S.2d 815 [3d Dept. 2010], lv denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011] ; see also People v. Jenkins , 75 N.Y.2d 550, 556, 555 N.Y.S.2d 10, 554 N.E.2d 47 [1990] ; see generally J.E.B. v. Alabama , 511 U.S. 127, 148-149, 114 S.Ct. 1419, 128 L.Ed.2d 89 [1994, O'Connor, J., concurring] ).
We reject defendant's contention that the court erred in permitting the People to introduce, as evidence of defendant's consciousness of guilt, evidence that, after the incident, the victim discovered that some of her electronic devices had been damaged. Evidence that defendant may have damaged the victim's electronic devices to prevent her from preserving a record of defendant's conduct is probative of his consciousness of guilt inasmuch as it is akin to evidence of tampering or witness intimidation (see generally People v. Bennett , 79 N.Y.2d 464, 469-470, 583 N.Y.S.2d 825, 593 N.E.2d 279 [1992] ; People v. Larregui , 164 A.D.3d 1622, 1623-1624, 83 N.Y.S.3d 784 [4th Dept. 2018], lv denied 32 N.Y.3d 1126, 93 N.Y.S.3d 264, 117 N.E.3d 823 [2018] ), and the probative value of that evidence is not outweighed by its potential for prejudice (see Larregui , 164 A.D.3d at 1624, 83 N.Y.S.3d 784 ; People v. Case , 113 A.D.3d 872, 873, 979 N.Y.S.2d 383 [2d Dept. 2014], lv denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ).
Furthermore, we conclude that although it was error for the court to permit the People to elicit testimony describing a statement made by defendant—i.e., his date of birth—that had been suppressed before trial based on a violation of Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1980] ; see People v. Harris , 77 N.Y.2d 434, 437, 568 N.Y.S.2d 702, 570 N.E.2d 1051 [1991] ; People v. Brown , 152 A.D.3d 1209, 1211, 59 N.Y.S.3d 234 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017], that error is harmless inasmuch as the remaining, properly admitted evidence of guilt is overwhelming and there is no reasonable possibility that the jury would have acquitted defendant in the absence of that testimony (see generally People v. Crimmins , 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; Brown , 152 A.D.3d at 1211, 59 N.Y.S.3d 234 ).
Contrary to defendant's contention, the court did not abuse its discretion in fashioning a Sandoval compromise. We conclude that the court properly balanced the probative value of allowing the People to inquire about the existence of two of defendant's prior felony convictions against the risk of unfair prejudice (see People v. Lloyd , 118 A.D.3d 1117, 1122, 987 N.Y.S.2d 672 [3d Dept. 2014], lv denied 25 N.Y.3d 951, 7 N.Y.S.3d 280, 30 N.E.3d 171 [2015] ; People v. Puff , 283 A.D.2d 952, 953, 724 N.Y.S.2d 247 [4th Dept. 2001], lv denied 96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666 [2001] ). The fact that the two felony convictions were remote in time does not, standing alone, preclude their admissibility under Sandoval (see People v. Walker , 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] ; People v. Taylor , 140 A.D.3d 1738, 1739, 34 N.Y.S.3d 310 [4th Dept. 2016] ).
Defendant's contention that the evidence supporting his conviction is legally insufficient is preserved only with respect to unlawful entry as an element of burglary in the first degree, and notice of the order of protection as an element of criminal contempt in the second degree and aggravated criminal contempt (see generally People v. Hines , 97 N.Y.2d 56, 61-62, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ; People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). To the extent that defendant challenges the sufficiency of the evidence with respect to intent as an element of burglary in the first degree and the lack of consent as an element of sexual abuse in the first degree his contention is unpreserved because he did not specifically advance those arguments in his motion for a trial order of dismissal (see Gray , 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ).
Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction. With respect to the count of burglary in the first degree, the victim's testimony that defendant forcibly pushed his way into her apartment without her permission is sufficient to establish that he unlawfully entered the apartment (see People v. Shay, 85 A.D.3d 1708, 1709, 925 N.Y.S.2d 789 [4th Dept. 2011], lv denied 17 N.Y.3d 822, 929 N.Y.S.2d 810, 954 N.E.2d 101 [2011] ; People v. Brown, 74 A.D.3d 1748, 1749, 902 N.Y.S.2d 276 [4th Dept. 2010], lv denied 15 N.Y.3d 802, 908 N.Y.S.2d 162, 934 N.E.2d 896 [2010] ). With respect to the counts of criminal contempt in the second degree and aggravated criminal contempt, testimony that the order of protection was entered by the court in defendant's presence is sufficient to establish that he had notice of the order of protection (see People v. Nichols, 163 A.D.3d 39, 47-49, 78 N.Y.S.3d 590 [4th Dept. 2018] ; see generally People v. Williams , 118 A.D.3d 1295, 1296, 987 N.Y.S.2d 772 [4th Dept. 2014], lv denied 24 N.Y.3d 1090, 1 N.Y.S.3d 17, 25 N.E.3d 354 [2014] ).
Furthermore, 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 People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Although a different verdict would not have been unreasonable, we cannot conclude that " ‘the jury failed to give the evidence the weight it should be accorded’ " ( People v. Ray, 159 A.D.3d 1429, 1430, 73 N.Y.S.3d 325 [4th Dept. 2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ; see People v. Edwards, 159 A.D.3d 1425, 1426, 73 N.Y.S.3d 323 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ). Ultimately the jury was in the best position to assess the victim's credibility (see generally People v. Ruiz, 159 A.D.3d 1375, 1375, 73 N.Y.S.3d 308 [4th Dept. 2018] ), and we perceive no reason to reject the jury's credibility determination. Moreover, we "note that [the victim's] testimony was not so inconsistent or unbelievable as to render it incredible as a matter of law" ( Edwards, 159 A.D.3d at 1426, 73 N.Y.S.3d 323 [internal quotation marks omitted] ).
Additionally, we reject defendant's contention that defense counsel was ineffective in cross-examining the victim about a police report involving defendant where the victim was not the complainant—thereby opening the door for the prosecution to question defendant on cross-examination about an incident where he allegedly stole someone's credit card. That sole tactical error, by itself, did not deprive defendant of meaningful representation inasmuch as the error was not "sufficiently egregious and prejudicial to compromise defendant's right to a fair trial" ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see People v. Cummings, 16 N.Y.3d 784, 785, 919 N.Y.S.2d 500, 944 N.E.2d 1139 [2011], cert denied 565 U.S. 862, 132 S.Ct. 203, 181 L.Ed.2d 108 [2011] ; People v. Paul , 171 A.D.3d 1555, 1557, 99 N.Y.S.3d 178 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 682, 130 N.E.3d 1292 [2019], reconsideration denied 34 N.Y.3d 983, 113 N.Y.S.3d 669, 137 N.E.3d 39 [2019] ).
Defendant's contention that he was deprived of a fair trial due to instances of prosecutorial misconduct on summation is for the most part unpreserved because defense counsel did not object to the majority of the purported improprieties (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ; People v. Maxey, 129 A.D.3d 1664, 1666, 14 N.Y.S.3d 845 [4th Dept. 2015], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 112, 59 N.E.3d 1224 [2016], reconsideration denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] ). In any event, any improprieties in the People's summation were not sufficiently egregious to deprive defendant of a fair trial. There was no "obdurate pattern of inflammatory remarks" or pervasive and egregious improper comments warranting a new trial ( People v. Whaley, 70 A.D.3d 570, 571, 895 N.Y.S.2d 78 [1st Dept. 2010], lv denied 14 N.Y.3d 894, 903 N.Y.S.2d 782, 929 N.E.2d 1017 [2010] ). Contrary to defendant's further contention, we conclude that defense counsel's failure to object to the allegedly improper comments did not constitute ineffective assistance because the challenged comments were not so egregious as to deprive defendant of a fair trial (see People v. Hendrix , 132 A.D.3d 1348, 1348, 17 N.Y.S.3d 256 [4th Dept. 2015], lv denied 26 N.Y.3d 1145, 32 N.Y.S.3d 59, 51 N.E.3d 570 [2016] ; People v. Black , 124 A.D.3d 1365, 1366, 1 N.Y.S.3d 676 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ). Defendant's contention that the court penalized him for exercising his right to trial by imposing a much greater sentence than was offered as part of a pretrial plea offer is unpreserved (see People v. Meacham , 151 A.D.3d 1666, 1669, 57 N.Y.S.3d 279 [4th Dept. 2017], lv denied 30 N.Y.3d 981, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] ). Finally, we conclude that the sentence is not unduly harsh or severe.