Opinion
3403/2003.
Decided May 27, 2004.
THE HONORABLE ROBERT T. JOHNSON, District Attorney, Bronx County, New York, BY: JILL S. STARISHEVSKY, ESQ., Assistant District Attorney, For the People of the State of New York.
JUAN PABLO VEGAROMERO, ESQ., For John Gassett.
Following a bench trial, Defendant, John Gassett, was found guilty of two counts of Attempted Sexual Abuse in the First Degree (Penal Law §§ 110/130.65 [1] and [3]), and one count of Endangering the Welfare of a Child (Penal Law § 260.10). He now moves to set aside the verdict pursuant to CPL § 330.30. Defendant claims that: (1) the verdict was based on legally insufficient evidence; (2) the verdict was repugnant; and (3) the court improperly allowed the People to call a rebuttal witness prior to Defendant offering any evidence. In addition, Mr. Gassett has filed numerous pro se motions which the Court will incorporate into the instant CPL § 330.30 motion. These various arguments claim ineffectiveness of counsel. The motion is denied.
Although Defendant claims that his motion is also brought pursuant to CPL § 440.10, such a motion is premature given that he has yet to be sentenced. See CPL § 440.10 (1) (requiring motion to be made "after the entry of judgment"). In addition, a motion pursuant to CPL § 440.10 must be denied as all of the claims raised are not matters dehors the record, and, therefore, could be raised on direct appeal. See CPL § 440.10 (2) (b).
To the extent that Defendant claims the verdict was against the weight of the evidence, it is well settled that the authority to assess the weight of the evidence is reserved to appellate courts. See People v. Vukel, 178 Misc.2d 218 (Sup.Ct. Bronx Cty. 1998), aff'd, 263 A.D.2d 416 (1st Dept. 1999), lv. denied, 94 N.Y.2d 830 (1999), citing, People v. Colon, 65 N.Y.2d 888 (1985).
Findings of Fact
The People's Direct Case
On Thursday July 3, 2003, eight-year-old Diamond, her younger brother Malik and their cousin Zaniera went from their home in Troy, New York to the home of their great aunt Thelma Gassett and her husband, the within Defendant. It is located at 150 West 225th Street, in Bronx County. That night, Diamond, Malik and Defendant slept in the bed in the bedroom while Zaniera and Thelma slept on the sofa in the living room. Defendant and Malik were on the two sides of the bed while Diamond was in the middle. Diamond wore her aunt's long night-shirt and a pair of panties while Defendant wore a T-shirt and pajama pants.
Pursuant to Civil Rights Law § 50 (b), the full name of the victim, which appears in the record, has been omitted.
In the middle of the night, Diamond awoke because she had to use the bathroom. She noticed that she had urinated in the bed and, as a result, her panties were soiled. Diamond went to the bathroom and returned to the same soiled portion of the bed still wearing her soiled panties.
At approximately 5:00 a.m. on the morning of July 4th, Diamond awoke as Defendant, who was naked, got off the bed, turned her around from lying on her stomach, pulled her to the edge of the bed, sat her up, stood in front of her and repeatedly tried to "hump her" by attempting to spread her legs apart with his hands and place his penis on her vaginal area. Each time Defendant tried to spread her legs, Diamond closed them tight. At the time, Diamond was no longer wearing her panties even though she had never removed them. She cried and screamed; Thelma immediately appeared while Defendant was standing naked directly in front of her. Thelma asked Defendant, in sum and substance, "What are you doing? Why are you butt naked standing in front of her?" Defendant replied, in sum and substance, "I was just trying to wake Diamond up to take her to the bathroom because she had wet the bed." Thelma then asked Diamond to go into the living room where she asked what had happened, and the girl told her that she woke up to use the bathroom, went back to lie down and woke again because Defendant was humping her.
Diamond later testified that while she was on her stomach, Defendant was over her back and humping her from behind in that his penis was touching her anus. However, in the Grand Jury, as well as in her conversations with her mother and the police, Diamond never stated that Defendant was on top of her while she was on her stomach or that his penis ever touched her.
Thelma contacted Diamond's aunt Lashere Eason, and, after their conversation, drove Diamond, Malik and Zaniera to Lashere's home in Troy, approximately two and one-half hours away. Defendant stayed behind. When she arrived, Thelma had a conversation with Lashere, and later, Diamond told Lashere what occurred.
On Sunday, July 6th, Diamond's mother Kareema Eason returned home and Lashere told her that Defendant did something to her. Diamond then told Kareema what happened and Kareema contacted the police and took Diamond to the hospital where she underwent a medical examination. On July 18 and 19, 2003, Detective William Fisher had telephone conversations with Kareema and Diamond, respectively, in which they informed him about what occurred on July 4th. The following day, Detective Fisher and his partner arrested Defendant at his home.
The Defense Case
Thelma Gassett, Defendant's wife, claimed that Diamond was hospitalized approximately one week before this incident because her mother beat her for urinating in bed. Although Thelma further claimed that, as a result, Diamond still had noticeable red and black and blue marks and welts on her legs and chest on July 4th, Diamond's medical record shows no such injuries.
Thelma testified that on July 4th, at approximately 5:00 a.m., she awoke on her own to take the children to the bathroom. She stated that as she passed the bedroom, she saw Diamond sitting on the edge of the bed and Defendant standing to the side of her about one foot away. Although Thelma confirmed that Diamond had urinated in the bed, she noted that the youngster had urinated in a bed at her house in the past, but that she never told Diamond's mother.
Thelma acknowledged that Diamond repeatedly told her that Defendant had been humping her. Thelma claimed that she only told Defendant about Diamond's allegations after she called Lashere. Thelma also noted that Defendant had found Diamond's panties, but she did not know how he knew to look for them because she never told him that they were missing. Thelma also claimed that she never believed Diamond's allegation even though she not only left her house at 5:00 a.m. and drove two and one-half hours to Lashere's house with the children and without Defendant, but, in addition, on July 5th, she went to the local stationhouse to report this allegation that she did not consider credible. Thelma claimed that when she talked to Lashere in person, Lashere threatened to kill Defendant. However, she never told the police about this threat. Thelma also denied ever telling Lashere that she observed Defendant standing naked in front of Diamond.
Defendant, a convicted felon, testified that on July 4th, at approximately 5:00 a.m., when he went to change sleeping position, he felt a cold spot that woke him up. Defendant claimed that although the wet spot was directly underneath where Diamond was sleeping, he did not touch her. Defendant claimed that he took his shirt off, placed it on the wet spot to try to soak it up and left it there despite Thelma's testimony that she did not know where his shirt was even though, moments later, she felt the wet spot on the bed. Defendant stated that he then tried to wake Diamond in order to make her go the bathroom. However, Defendant then gave inconsistent and contradictory explanations as to what occurred next, including how he grabbed Diamond to pull her off of the bed, whether he was pulling Diamond off of the bed when Thelma walked in, and whether Thelma, in fact, walked into the bedroom. In addition, Defendant's explanations of these events contradicted his Grand Jury testimony as well as Thelma's testimony. Moreover, Defendant testified at trial that he was wearing green pajamas, similar to what he heard Thelma state in her testimony. However, in the Grand Jury, Defendant testified that they were black/greyish.
Defendant stated that although he considered Lashere's threat to kill him credible, he did not report it to the police. Defendant first claimed that he then left the apartment due to this threat and denied that Thelma threw him out. However, after being confronted with his Grand Jury testimony, Defendant acknowledged that Thelma stated to him, in sum and substance, "either you go or I go," even though she had denied making such a statement. Moreover, Defendant testified that when he went to work the next Monday, Thelma appeared and "took him back," even though he previously claimed that she did not "kick him out of the house."
The People's Rebuttal
In the course of their conversation on July 4th, in Troy, Thelma told Lashere that when she woke up, she saw Defendant standing in front of Diamond with no clothes on. However, in a later conversation with Lashere, Thelma denied making such a statement.
Arguments of Counsel
Defendant claims that: (1) Diamond's testimony did not establish his guilt beyond a reasonable doubt because her testimony is incredible as a matter of law and it also failed to establish that he attempted to subject her to sexual contact or use forcible compulsion; (2) the verdict is repugnant; (3) this Court violated CPL §§ 320.20 and 260.30 by allowing the People to call Lashere Eason as a rebuttal witness prior to his offering any evidence; and (4) his counsel was ineffective because he did not hire a private investigator, his opening statement and direct and cross examinations were ineffectual, and he failed to call certain witnesses.
The People contend that Defendant's claim that the evidence was legally insufficient as a matter of law is unpreserved and unsubstantiated. As for Defendant's repugnancy claim, the People contend that this claim is both unpreserved and that the verdicts were logically reconcilable because the charges for which Defendant was acquitted were not conclusive as to any of the necessary elements of the charges for which Defendant was convicted. The People next contend that their being allowed to call the rebuttal witness prior to Defendant offering any evidence was proper because this witness would have otherwise been unavailable and the Court, as the finder of fact, was able to distinguish the direct and rebuttal evidence. Finally, the People contend that Defendant's ineffective assistance of counsel claim is baseless and the record is devoid of any evidence that Defendant disagreed with his counsel's trial strategy.
Discussion
Criminal Procedure Law § 330.30 (1) states that "[a]t any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon . . . [a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." Thus, the power of a trial court considering a CPL § 330.30 motion is far more limited than that of an intermediate appellate court considering a direct appeal. See People v. Carter, 63 N.Y.2d 530 (1984)
I. Defendant's insufficiency of the evidence claim.
Although the Court finds that Defendant's motions at the close of the People's case and at the close of the trial were sufficient to preserve this issue, it is nevertheless well settled that:
The power granted a Trial Judge by CPL § 330.30 (1) to set aside a verdict . . . as concerns proof of guilt [is] . . . limited to a determination that the trial evidence was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted. . . . Thus, [a defendant's] conviction could . . . be . . . set aside under CPL § 330.30 only if based upon insufficient evidence or evidence which as a matter of law was inadequate to prove guilt beyond a reasonable doubt.
Carter, supra at 536-37.
The standard for determining whether the evidence presented by the People is legally sufficient is "whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt." People v. Hitchcock, 98 N.Y.2d 586, 591 (2002), quoting, People v. Chico, 90 N.Y.2d 585, 588-89 (1997). Here the evidence unquestionably meets this standard.
At trial, the Court learned that Defendant and eight-year-old Diamond were sleeping in the same bed. Diamond awoke when Defendant, who was naked, got off the bed, turned her around from lying on her stomach, pulled her to the edge of the bed, sat her up, stood in front of her and repeatedly tried to "hump her" by trying to spread her legs apart with his hands and place his penis on her vagina area. Moreover, Diamond was no longer wearing her panties even though she never removed them. Diamond cried and screamed and, within moments, Thelma appeared while Defendant was standing naked directly in front of Diamond. Once outside of Defendant's presence, Diamond told Thelma that she awoke because Defendant was humping her. Thelma then drove Diamond and the other children to Lashere's home in Troy, approximately two and one-half hours away. Diamond subsequently told Lashere, her mother Kareema and Detective William Fisher what occurred.
Juxtaposed against this case was the inconsistent, contradictory and interested testimony of Thelma Gassett and Defendant. Thelma's testimony was unworthy of belief for many reasons. First, Thelma's claim that Diamond still had noticeable injuries from a prior assault by her mother is directly refuted by the medical record. In addition, the fact that Thelma admitted that she had never told Kareema that Diamond had urinated in a bed at her house before directly refutes the theory that Diamond concocted the within charges for fear of being assaulted by her mother. The Court also finds it implausible to believe that Thelma suddenly happened to wake up without any alarm at 5:00 a.m. to take all of the children to the bathroom. Rather, it seems far more believable that she awoke at this time due to Diamond cries and screams. Thelma was also unable to explain how Defendant knew to look for Diamond's panties in light of the fact that she never told him that they were missing. Moreover, Thelma's testimony that she never believed the allegation is also unworthy of belief in light of the fact that she left her house at 5:00 a.m., drove two and one-half hours to Lashere's house with the children and without Defendant, and later, went to the local stationhouse to make a report.
Defendant's testimony is also fatally flawed. Initially, the Court is unaware as to how it is physically possible for him to feel a wet spot directly underneath Diamond without touching her. Moreover, his testimony is also unbelievable in light of the many contradictions not only with his Grand Jury testimony, but, also, Thelma's testimony, including how he pulled Diamond off of the bed, whether he was pulling Diamond off of the bed when Thelma appeared, whether Thelma ever walked into the bedroom, the color of his pajama pants, and whether Thelma forced him to leave the apartment. Indeed, neither Defendant nor Thelma could explain how he could place his shirt on the wet spot to soak it up, but yet, she did not know where it was even though she observed and felt the wet spot for herself shortly later. Therefore, viewing this evidence in the light most favorable to the People, it is unquestionably sufficient to prove defendant's guilt of two counts of first-degree attempted sexual abuse and one count of child welfare endangerment.
Moreover, the abovementioned evidence, again viewed in the light most favorable to the People, clearly refutes Defendant's claims that the People failed to establish that he used forcible compulsion (P.L. § 130.00), attempted to subject Diamond to sexual contact (P.L. § 130.00), and that his actions were consistent with the innocent conduct of trying to get Diamond out of the bed. See People v. Del Campo 281 A.D.2d 279, 280 (1st Dept. 2001) (First degree sexual abuse where "defendant grabbed [victim] . . . from behind, lifted her off her feet, and rubbed his genitals against her buttocks while his hands were on her breasts. The act of lifting the complainant off the ground, thereby limiting her freedom of movement was plainly forcible."), lv. denied, 97 N.Y.2d 640 (2001); People v. Simmons, 278 A.D.2d 29 (1st Dept. 2000) ("[E]lement of forcible compulsion was established by evidence that the complainant repeatedly said 'no' and attempted to push defendant off as he . . . pinned her down."), lv. denied, 96 N.Y.2d 787 (2001); People v. Cobb, 188 A.D.2d 308 (1st Dept. 1992) ("The evidence adduced at trial . . . was sufficient to establish the forcible compulsion element . . . by showing defendant's use of his physical dominance."), lv. denied, 81 N.Y.2d 969 (1993); People v. Yeaden, 156 A.D.2d 208 (1st Dept. 1989) ("[D]efendant used his superior age, size and strength to . . . have sexual intercourse. . . . Forcible compulsion was shown by evidence of the defendant's dominating his smaller and weaker daughter and preventing her from leaving."), lv. denied, 75 N.Y.2d 872 (1990).
Although Defendant also claims that the People failed to prove that he attempted to have sexual intercourse with Diamond, such an issue is moot as Defendant was acquitted of both counts of Attempted Rape in the First Degree and sexual intercourse is not an element for any of the crimes for which he was found guilty.
Furthermore, the fact that Defendant's penis did not touch Diamond is the very reason why he was found guilty of Attempted Sexual Abuse rather than Sexual Abuse. See People v. Garcia, 207 A.D.2d 718 (1st Dept. 1994) (evidence that Defendant rubbed his clothed genitals against those of the victim, who resisted him, was sufficient to support a finding that defendant came dangerously close to the accomplishment of the act of subjecting the complainant to sexual contact by forcible compulsion), lv. denied, 84 N.Y.2d 1011 (1994).
It must be noted that the Court, as the finder of fact, agreed with Defendant that Diamond's testimony that before she was pulled to the side of the bed, while she was lying down on her stomach, Defendant was over her back and humping her from behind in that his penis was touching her anus, was not believable beyond a reasonable doubt. This is in light of the fact that this was never mentioned in her Grand Jury testimony, as well as in her conversations with her mother and Detective Fisher. This underlies the finding that although Defendant attempted to subject Diamond to sexual contact at the edge of the bed, he did not attempt to have sexual intercourse with her. Indeed, there was no testimony of Defendant pulling up Diamond's night-shirt, which covered her to her knees. Although Defendant was trying to place his penis on her vaginal area over clothing, thus establishing attempted sexual contact, he was unable to insert his penis into her vagina, and thus, unable to attempt to engage in sexual intercourse. See Matter of Randolph P., 254 A.D.2d 94 (1st Dept. 1998) (sexual contact established where defendant touched victim's vagina, breasts and buttocks through her clothing); People v. Stephens, 2 A.D.3d 888 (3rd Dept. 2003) (sexual contact established by defendant touching the top of complainant's undergarments); People v. Wali, 161 A.D.2d 742 (2nd Dept. 1990) (sexual contact includes "contact made through the victim's clothing").
However, because this portion of Diamond's testimony is not believable beyond a reasonable doubt has no effect on finding the remainder of her testimony believable beyond a reasonable doubt. See People v. Jackson, 65 N.Y.2d 265, 272 note 7 (1985) (fact finder permitted "to accept so much of a witness's testimony as it believes true and reject such part as it deems false"); People v. Reed, 40 N.Y.2d 204, 208 (1976) ("[T]he credibility of a witness is ordinarily a question for the [fact-finder], and the [fact-finder] may choose to believe some, but not all, of a witness' testimony.").;
Respecting Defendant's claim that Diamond admitted that she was coached by Lashere and Kareema in her testimony and that they told her what to say, it was readily apparent to the finder of fact that the affirmative answers to these questions were given by Diamond because she appeared tired and wanted to finish testifying. See People v. Streety, 157 A.D.2d 526, 527 (1st Dept. 1990) ("The demeanor of the witnesses . . . and the inconsistency in their testimony presented credibility issues for the [fact-finder]."), lv. denied, 75 N.Y.2d 970 (1990). People v. Jones, 165 A.D.2d 103, 108 (1st Dept. 1991) ("It is well settled that matters of credibility are reserved for the triers of fact, who have had an opportunity to observe the demeanor of the witnesses and are therefore in the best position to weigh their testimony. . . . [D]efendant's compilation of apparent discrepancies and inconsistencies . . . comprises matters for the [fact-finder] to resolve."), lv. denied, 77 N.Y.2d 962 (1991). In any event, these alleged admissions were explained during the following questioning:
ASST. DIST. ATTY.: Diamond, I know it has been a long day, do you understand what defense attorney was just saying to you? Did you understand his questions right now?
DIAMOND: When he was talking about when he was humping me?
ASST. DIST. ATTY.: When he said you remember what happened because your mom told you what happened. Do you understand what he is trying to say to you?
DIAMOND: Yes.
ASST. DIST. ATTY.: Your mom, was she there when this happened?
DIAMOND: No.
ASST. DIST. ATTY.: So, has your mom ever told you what your uncle was doing to you that day? Did she sit down and say okay, Diamond, first your uncle was doing this? Your mom wasn't there; was she?
DIAMOND: No.
ASST. DIST. ATTY.: Did you mom ever tell you what happened that day or did you tell your mother?
DIAMOND: I told my mother. But then she wasn't sure was I right or not because she thought I was telling a lie because I was scared. And then she asked my auntie and my auntie told her everything that happened because my Aunt Thelma had told her.
ASST. DIST. ATTY.: Are you saying your mom asked you after you told her everything that happened, not your mom telling you, but after you told your mom what happened, your mom then asked your Aunt Lashere what happened?
DIAMOND: Yes.
ASST. DIST. ATTY.: Your mom found out from Aunt Lashere everything that Aunt Thelma told Aunt Lashere; right?
DIAMOND: Yes.
ASST. DIST. ATTY.: No one told you what to say here today; is that correct?
DIAMOND: Yes.
ASST. DIST. ATTY.: Other than the part you said you didn't remember about wetting yourself until one of your aunts told your mom and your mom asked you; is that correct?
DIAMOND: Yes.
ASST. DIST. ATTY.: But other than that, Diamond, your mom wasn't in the room when this happened; correct?
DIAMOND: Correct.
ASST. DIST. ATTY.: And everything you are here telling us you remember on your own; is that correct?
DIAMOND: Yes.
(Transcript, Re-direct, at 86-87).
Lastly, Diamond's admission that she lied to Detective Fisher about urinating in the bed does not make her testimony unworthy of belief. See People v. Burton, 286 A.D.2d 772, 773 (2nd Dept. 2001) (upholding conviction despite the fact that "defense counsel elicited admissions from the prosecution's main witness that he lied to the police in his initial statement [and] that he lied to the Grand Jury"), lv. denied, 97 N.Y.2d 679 (2001). Indeed, Diamond credibly explained that she lied about this fact because she was embarrassed to tell a stranger that she had urinated in bed.
II. Defendant's repugnancy of the verdict claim.
At the outset, the Court notes that, as this was a nonjury trial, a repugnant verdict claim is cognizable in a CPL § 330.30 motion even though Defendant previously voiced no complaint. As explained in People v. Alfaro, 66 N.Y.2d 985, 987 (1985):
In nonjury cases as here such an issue may be raised at a later stage by moving to set aside or modify the verdict pursuant to CPL § 330.30 since the court, as trier of the facts as well as the law, is still available to correct repugnancies in the verdict if there be any.
However, the same standard is used in jury and nonjury trials in determining whether a verdict is, in fact, repugnant. In People v. Tucker, 55 N.Y.2d 1, 7 note 3 (1981), the Court of Appeals, relying on United States v. Maybury, 274 F.2d 899 (2nd Cir. 1960), noted that in cases where there is an alleged inconsistent verdict, "[d]ifferent considerations may be present when the trier of fact is the Judge." In Maybury, supra at 903, the Second Circuit held that "[t]here is no need to permit inconsistency in the disposition of various counts so that the judge may reach unanimity with himself; on the contrary, he should be forbidden this easy method for resolving doubts."
In Tucker, supra, at 4-7, the Court of Appeals held that:
When there is a claim that repugnant . . . verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged. . . . Review of the entire record . . . is inappropriate. . . . [A] conviction will be reversed only in those instances where acquittal on one crime as charged . . . is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered.
See also People v. Green, 71 N.Y.2d 1006 (1988); People v. Goodfriend, 64 N.Y.2d 695 (1985); People v. Echevarria, 233 A.D.2d 200 (1st Dept. 1996), lv. denied, 89 N.Y.2d 942 (1997).
In Streety, supra, the First Department held that a verdict was not repugnant where a defendant was acquitted of all rape and sodomy charges, but was found guilty of Sexual Abuse in the First Degree on the ground that "defendant's repeated efforts to consummate sexual acts with the victim, against her will, constituted sexual abuse." Likewise, in People v. Pilich, 128 A.D.2d 903, 904 (2nd Dept. 1987), lv. denied, 70 N.Y.2d 653 (1987), the Second Department, in dealing with a very analogous situation, held that, after a nonjury trial:
[T]he verdict acquitting the defendant of sodomy in the first degree and attempted rape in the first degree, convicting him of one count of sexual abuse in the first degree, and dismissing two counts of sexual abuse in the first degree was not repugnant and will not be set aside. The crimes of sodomy in the first degree and attempted rape in the first degree, for which the defendant was tried, have elements different from the crime of sexual abuse in the first degree ( cf., Penal Law §§ 130.50 [1], 110.00, 130.35 [1], 130.65), and a verdict acquitting the defendant of the first two crimes did not negate an element of the sexual abuse charge upon which the defendant was convicted ( cf., Tucker, supra). The dismissal by the Trial Judge of two counts of sexual abuse in the first degree, after finding the defendant guilty of one count of sexual abuse in the first degree was not repugnant to the finding of guilt on the initial count of sexual abuse.
See also People v. Wilson, 267 A.D.2d 1061 (4th Dept. 1999), lv. denied, 94 N.Y.2d 908 (2000); People v. Waytes, 107 A.D.2d 774 (2nd Dept. 1985).
Similarly here, the verdict convicting Defendant of two counts of first degree attempted sexual abuse and one count of child welfare endangerment and acquitting him of two counts of first degree attempted rape is not repugnant since attempting to have sexual intercourse with a child is not a necessary element of attempting to subject a child to sexual contact or endangering a child's welfare. Indeed, as previously stated, the Court, as the finder of fact, found that Defendant attempted to subject Diamond to sexual contact at the edge of the bed but did not attempt to have sexual intercourse with her due primarily to that fact that there was no testimony of Defendant pulling up Diamond's night-shirt which covered her to her knees. Therefore, although Defendant tried to place his penis on her vaginal area over clothing, thus establishing attempted sexual contact, he was unable to insert his penis into her vagina, and thus, unable to attempt to engage in sexual intercourse.
III. Defendant's improper receipt of rebuttal evidence claim.
Criminal Procedure Law § 320.20 (3) (b) provides that in non-jury trials, "the order in which evidence must or may be offered by the respective parties is the same as that applicable to a jury trial of an indictment as prescribed in subdivisions five, six and seven of section 260.30." CPL § 260.30 states, in pertinent part, that:
5. The people must offer evidence in support of the indictment. 6. The defendant may offer evidence in his defense. 7. The people may offer evidence in rebuttal of the defense evidence. . . . In the interest of justice, the court may permit either party to offer evidence upon rebuttal which is not technically of a rebuttal nature but more properly a part of the offering party's original case.
However, in People v. Whipple, 97 N.Y.2d 1, 6 (2001), the Court of Appeals, relying on its previous decision in People v. Olsen, 34 N.Y.2d 349, 353 (1974), noted that this framework "is not a rigid one and the common-law power of the trial court to alter the order of proof in its discretion and in furtherance of justice remains at least up to the time the case is submitted to the jury."
Indeed, in both Whipple, supra, and Olsen, supra, the Court of Appeals held that a permissible exception to the statutory framework is when the witness would otherwise be unavailable. This was reaffirmed by the First Department in People v. Ramirez, 200 A.D.2d 377 (1st Dept. 1994), lv. denied, 83 N.Y.2d 857 (1994), in which it held that "[i]t was not an abuse of discretion to permit an expert witness, who otherwise would have been unavailable, to testify out of turn." Likewise, in People v. Smith, 166 A.D.2d 385 (1st Dept. 1990), aff'd, 79 N.Y.2d 779 (1991), the First Department held that "as a matter of efficient courtroom management," it was proper to have the defendant testify on his own behalf prior to the People resting in light of the fact that he had already made known his wish to testify. The Court explained that:
[T]his modest departure from the normal order of trial set out in CPL § 260.30 . . . did not . . . either tactically disadvantage defendant or deprive him of a fair trial. The CPL framework delineating the order of trial does not foreclose the trial court's exercise of its common law power to vary the order of proof "in its discretion and in furtherance of justice" ( Olsen, supra at 353, citing, People v. Benham, 160 N.Y. 402, 437 [1899]), a power which "remains at least up to the time the case is submitted to the jury" ( id.).
Smith, id.; cf., People v. Mason, 263 A.D.2d 73 (1st Dept. 2000).
Similarly here, the Court appropriately exercised its common law power to vary the order of proof by allowing the People to elicit both the direct and anticipated rebuttal testimony of Lashere during her direct testimony due primarily to her unavailability after that time and the fact that the case had yet to be submitted to the fact-finder. Moreover, the Court noted that it would reserve its decision whether to accept her testimony after Defendant had presented its case in order to determine if it was, in fact, rebuttal testimony. Having determined that it was, a point not disputed by Defendant, there was no error, especially in light of the fact that the Court, as the fact-finder, has the ability to discern what was direct and what was rebuttal testimony without worry of prejudice or confusion. See People v. Raheen, 189 A.D.2d 698 (1st Dept. 1993) (where trial court properly struck certain testimony from the direct case but allowed it only as rebuttal evidence, "[s]ince this was a bench trial, and since the court was . . . deciding the suppression issues based on the trial testimony, defendant cannot argue at this juncture that he was prejudiced by the mere admission of this testimony, later struck from record, on the People's direct case"), lv. denied, 81 N.Y.2d 1018 (1993).
IV. Defendant's ineffective assistance of counsel claim.
In People v. Benevento, 91 N.Y.2d 708, 712-15 (1998), our Court of Appeals opined the standard for ineffective assistance of counsel:
The core of the inquiry is whether defendant received meaningful representation . . . the test being reasonable competence, not perfect representation. . . . It is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings. . . . Counsel's performance should be objectively evaluated . . . [t]o determine whether it was consistent with strategic decisions of a reasonably competent attorney. . . . As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance. . . . [A] claim of ineffective assistance of counsel will be sustained only when it is shown that counsel partook an inexplicably prejudicial course.
See generally People v. Stultz, N.Y.3d, 2004 WL 942893 (May 4, 2004); People v. Henry, 95 N.Y.2d 563, 565 (2000); People v. Flores, 84 N.Y.2d 184, 188 (1994); People v. Baldi, 54 N.Y.2d 137 (1981).
Here, based on the totality of the representation of defense counsel, including the fact that Defendant was found not guilty of the top two charges, his performance clearly was not deficient so as to deny Defendant meaningful representation. Indeed, counsel's effective cross examination of Diamond with her Grand Jury testimony, as well as his ability to demonstrate that she failed to mention to her mother or Detective Fisher anything regarding Defendant allegedly humping her from behind while she was on her stomach or ever mentioning that his penis touched her, was the reason that the Court, as the fact-finder, found that the People failed to establish this alleged incident beyond a reasonable doubt, which otherwise would have caused
Defendant to have been convicted of first degree attempted rape. This clearly belies Defendant's claim that his counsel was ineffective in his examination of the witnesses. See People v. Espinal, 220 A.D.2d 276 (1st Dept. 1995) (counsel effective where he "vigorously cross-examined the People's witnesses in an attempt to elicit inconsistencies"), lv. denied, 87 N.Y.2d 900 (1995). Likewise, the Court also finds that counsel delivered a cogent opening statement that anticipated Defendant testifying and pursued his defense that the complaint was no more than a hoax so that Diamond would avoid any repercussions from her mother for urinating in bed, and there is no evidence that Defendant disagreed with this defense. See People v. Hendricks, 243 A.D.2d 396 (1st Dept. 1997) (opening statement was based on anticipation that defendant would testify), lv. denied, 91 N.Y.2d 941 (1998); Espinal, supra (counsel "presented consistent opening and closing statements in pursuit of the defense that the charges were groundless because the incident was no more than a hoax orchestrated by the complainant [and] [t]here is no evidence in the available record that defendant disagreed with this choice of defense").
Finally, Defendant's claims that his attorney was ineffective for failing to call certain witnesses or hire an investigator are meritless as they would have merely confirmed Diamond and Thelma's testimony that Diamond was struck by her mother when she urinated in bed. Thus, there was no strategic reason to conduct such investigations or call such witnesses for mere cumulative evidence. See People v. Singleton, 3 A.D.3d 408 (1st Dept. 2004) (counsel's decision not to call a witness was a sound strategic decision); People v. Rosario, 309 A.D.2d 537, 538 (1st Dept. 2003) ("there are reasonable strategic explanations for trial counsel's decision not to call certain witnesses" and defendant's claim to the contrary was non substantiated due to the lack of any affidavits from the uncalled witnesses), lv. denied, 1 N.Y.3d 579 (2003). In any event, this defense suffered from a fatal flaw, namely the admission by Thelma that she never told Diamond's mother when she urinated in a bed at her home in the past, meaning that Diamond had no reason to make up this claim for fear of being struck by her mother. See People v. Del Campo, supra, at 280 ("Counsel may not be expected to create a defense where it does not exist."), lv. denied, 97 N.Y.2d 640 (2001), citing, People v. DeFreitas 213 A.D.2d 96, 101 (2nd Dept. 1995), lv. denied, 86 N.Y.2d 872 (1995). Therefore, "there is no showing, other than speculation, that if counsel had held further interviews . . . [or] hired or sought the appointment of an investigator, that this could have had any effect on the outcome of the trial." People v. Spencer, 226 A.D.2d 160, 161 (1st Dept. 1996), lv. denied, 88 N.Y.2d 992 (1996), lv. denied, 88 N.Y.2d 995 (1996).
ORDERED, that the defendant's motion to set aside the verdict is, in all respects, denied.
The foregoing constitutes the opinion and decision of the Court.