Opinion
2015-124
07-11-2019
The PEOPLE of the State of New York v. Mark A. HARTLE, Defendant.
St. Lawrence County District Attorney Defense Counsel — John A. Cirando, Esq.
St. Lawrence County District Attorney
Defense Counsel — John A. Cirando, Esq.
Jerome J. Richards, J.
On June 8, 2016, the above-named defendant was found guilty after jury trial of four counts of Rape in the first degree ( Penal Law § 130.35 [1] ), four counts of Criminal sexual act in the first degree (PL § 130.50 [1] ), four counts of Sexual abuse in the first degree (PL § 130.65 [1] ), four counts of Rape in the third degree (PL § 130.25 [1] ), five counts of Criminal sexual act in the third degree (PL § 130.40 [1] ) and three counts of Sexual abuse in the third degree (PL § 130.55). On the 15th of August, 2016, this Court (Champagne, A.C.J.) subsequently sentenced defendant to an aggregate term of incarceration of 54 years, to be followed by ten years post-release supervision.
As noted by the Supreme Court, Appellate Division, Third Judicial Department (hereinafter "Third Department"), defendant's aggregate sentence of imprisonment was reduced by operation of law to 50 years pursuant to the provisions of PL § 70.30 (1)(e)(vi) (see
Defendant appealed his Judgment of Conviction and sentence. The issues raised by defendant on appeal were seven-fold: 1.) The underlying indictment was facially defective; 2.) The jury's verdict of guilty was not supported by legally sufficient evidence; 3.) The guilty verdict was against the weight of the evidence; 4.) Defendant was deprived of his right to a fair trial as a result of prejudicial remarks made by the prosecutor during closing argument; 5.) County Court abused its discretion by denying defendant's motion to set aside the verdict, without a hearing; 6.) Defendant's sentence was unduly harsh and excessive; and 7.) Defendant received ineffective assistance of counsel. By Memorandum and Order, decided and entered on March 8, 2018, the Third Department affirmed his conviction and sentence in its entirety (see People v. Hartle , supra 159 AD3d 1149 ). The Court of Appeals thereafter denied defendant's application for leave to appeal by Opinion (Wilson, J.), dated May 30, 2018 ( 31 NY3d 1082 ).
The matter is now before the Court upon defendant's motion to vacate judgment on the alleged grounds of ineffective assistance of counsel and newly discovered evidence (see Criminal Procedure Law § 440.10 [1][g] and [h] ). The People have submitted papers which wholly oppose the relief requested in defendant's application. Additionally, oral argument on the motion was heard by the Court on March 25, 2019 and May 10, 2019.
For the reasons that follow, the Court hereby denies both claims raised in defendant's motion, as the record reflects that defendant received meaningful representation of counsel. Additionally, the materials proffered by defendant do not constitute newly discovered evidence as contemplated by CPL § 440.10 (1)(g).
FINDINGS OF FACT and CONCLUSIONS OF LAW
I.) Defense Counsel's Motion Papers and the People's Opposition Thereto :
Initially, the papers submitted in support of defendant's motion to vacate are as follows:
1.) Supporting Affidavit of John A. Cirando, Esq., sworn to on March 8, 2019;
2.) The Third Department's Memorandum and Order on Appeal, entered March 8, 2018;
3.) The Decision and Order (Catena, J.) entered in People v. Andrew J. Regan , Indictment No.: 2013-212, dated August 14, 2018;
4.) Affidavit of defendant, sworn to on February 26, 2019;
5.) Letter from John A. Cirando, Esq., dated January 14, 2019, with content thereof affirmed by Emil M. Rossi, Esq. and Michael Spano, Esq.;
6.) New York State Police Report of Inv. Patrick Loveland, dated July 23, 2015;
7.) Supporting Affidavit of Helen M. Hartle, sworn to on February 28, 2019;
8.) Photocopy of envelope reflecting alleged receipt of defendant's cell phone by D.J. & J.A. Cirando, PLLC;
9.) Photocopy of check to cover costs of services of AMRIC Associates;
10.) Copy of letter from John A. Cirando, Esq., dated April 17, 2017, to AMRIC Associates, and FedEx Statement relating to defendant's cell phone;
11.) Copy of letter from AMRIC Associates, dated December 17, 2018;
12.) AMRIC Associates Report, prepared by Tony Martino, dated June 21, 2017;
13.) Copies of non-deleted text messages recovered by AMRIC Associates
14.) ANJOLEN Report, prepared by Tony Martino, dated January 30, 2019;
15.) Copies of deleted text messages recovered from defendant's cell phone by ANJOLEN;
16.) Copies of deleted photographs recovered from defendant's cell phone by ANJOLEN, submitted for in camera review;
17.) Copies of text messages recovered from the victim's cell phone via forensic examination conducted by New York State Police, Bureau of Criminal Investigation;
18.) A transcript of the victim's trial testimony; and
19.) Supplemental Affidavit of Anthony Martino, sworn to on April 24, 2019.
Collectively, the motion papers argue and allege that defendant received ineffective assistance of counsel as a result of his trial attorneys' failure to disclose to defendant the fact that Emil Rossi, Esq. had previously represented former District Attorney Mary E. Rain, and that such representation concluded in December 2014, prior to her prosecution of the instant proceeding. The defense also claims that they have obtained newly discovered evidence in the form of previously deleted text messages and photographs that were recovered from defendant's cell phone through a forensic retrieval process known as ‘rooting’.
It is alleged that the technology required to perform this process was not available at the time of trial, and, as such, the material could not have been recovered by trial counsel with due diligence. Furthermore, defendant offers the affidavit of his mother, who attests that she unsuccessfully attempted to obtain the deleted materials from defendant's cell phone service provider. It is defense counsel's position that the previously deleted text messages and photographs retrieved from defendant's phone demonstrate that his sexual interactions with the victim were not by forcible compulsion, as such term is defined by PL § 130.00 (8). Defense counsel further asserts that the text messages and photographic evidence are of such an exculpatory nature that there is a strong probability that their admittance in evidence would have called the victim's credibility into question and ultimately resulted in a more favorable outcome.
In support of his claim of newly discovered evidence, defendant offers a letter from his current counsel, dated January 14, 2019, the contents of which have been affirmed by both of his trial attorneys. Inter alia , the letter provides the following:
"During your pre-trial preparation of the matter Mark Hartle mentioned that he had cell phone photographs from ... [the victim]. A review of Exhibit No.12, to the State Police General 2, Forensic Examination Report of [the victim's]... phone, did not reveal any type of contact with Mark Hartle. Accordingly, your belief was that if any photographs or messages [had] been on the cellphone they had to have been deleted.
At this time, in 2015, neither of you knew of any type of technology that would be able to retrieve such deleted information.
No reference was made during trial of any cell phone communication by way of photographs or text messaging between... [the victim] and Mr. Hartle since you could not see/observe the material you could not make an intelligent determination whether or not to utilize such material" (Motion to Vacate the Judgment of Conviction, Volume II of II, Appendix D).
In further support of his claim of newly discovered evidence, defendant offers the affidavit and report of Mr. Anthony ‘Tony’ Martino, who attests that in April of 2017, multiple attempts were made to "root" defendant's cell phone. It is alleged that "[t]hese attempts utilized rooting software that was available at the time and was designed to be compatible with the make and model of Mr. Hartle's phone but was incapable of successfully breaking the security of the device. As rooting software is continually updated and enhanced, it will commonly be able to break the security of a larger number of older devices that were previously inaccessible" (Supplemental Affidavit of Anthony Martino at ¶10).
He further attests that in September of 2018, Mr. Martino's firm received an update to the software designed to root Android devices, and implemented the program onto defendant's phone. Thereafter, Mr. Martino "successfully completed the rooting procedure.... [and, as a result thereof,] [a] physical memory acquisition was then performed. This extraction contained all of the data present on the device, including files that were previously deleted by the user" (Id. at ¶¶ 11-12). As noted in the conclusion of his accompanying report, dated January 30, 2019, Mr. Martino indicates that "[t]he initial forensic examination of the cellular telephone submitted as evidence in this case failed to identify new items of interest. The use of a ‘rooting’ application that was manufactured in September 2018 allowed the bypassing of security mechanisms and a complete extraction of the memory of the device" (Motion to Vacate the Judgment of Conviction, Volume II of II, Appendix L).
As noted above, the People wholly oppose defendant's motion to vacate, offering the affirmation and memorandum of law of Assistant District Attorney Jason Marx, as well as the unsworn affidavit of New York State Police Investigator Todd Svarczkopf, dated April 29, 2019.
In relation to defendant's claim of ineffective assistance of counsel, the People argue that defendant's affidavit and the letter affirmed by his trial attorneys fail to rebut the presumption that defendant received meaning representation of counsel. It is asserted that defendant's motion papers fail to demonstrate how the successive representation by trial counsel of defendant after having completed his representation of Ms. Rain has worked to prejudice defendant. Moreover, the People also note that defendant raised his claim of ineffective assistance of counsel on direct appeal, and the Third Department found such claim to be "lacking in merit" ( People v. Hartle , supra 159 AD3d at 1155 ).
As for the merits of the claim, the People note that trial counsel engaged in pre-trial motion practice, which resulted in dismissal of two counts of the indictment; offered comprehensive opening and closing statements; conducted zealous cross-examination and made a trial motion to dismiss which resulted in dismissal of two more counts of the indictment. Accordingly, the People argue the defendant's claim of ineffective assistance of counsel is without merit and should be summarily denied.
With regard to defendant's claim of newly discovered evidence, the People initially point to the well-established standard to determine if material constitutes newly discovered evidence for purposes of CPL § 440.10 (1)(g). Such material must satisfy each of the following requirements:
"(1) [i]t must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could have not been discovered before the trial by exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and, (6) it must not be merely impeaching or contradicting the former evidence" ( People v. Werkheiser , 171 AD3d 1297, *4 [3d Dept 2019], quoting People v. Tucker , 40 AD3d 1213, 1214... [3d Dept 2007], lv denied 9 NY3d 882... [2007] ).
The People argue that defendant has failed to demonstrate how the materials retrieved from his phone will likely change the outcome. It is further argued that defendant's reliance on this purported newly discovered evidence has vastly shifted the defense that is now being put forward. In particular, the People note that defendant previously denied each and every allegation; whereas, defense counsel now concedes that while defendant's actions cannot be condoned, the alleged newly discovered evidence establishes that his sexual contact with the victim was not the result of forcible compulsion.
With regard to the text messages retrieved, the People note that the explicit messages were always initiated by defendant, which they argue is indicative of classic grooming behavior, and consistent with the victim's trial testimony that she would thereafter "downplay" his advances. The People also contend that the text messages do not constitute newly discovered evidence, as they are material that would tend to impeach the victim's trial testimony, rather than exculpate defendant. Moreover, the People argue that contrary to the defense's trial strategy that the vicitm's allegations were always uncorroborated, the text messages now offered by defendant support her accusations, such that the proof of defendant's guilt is stronger than it was in the underlying trial. Based upon the foregoing, the People take the position that the materials retrieved from defendant's phone do not constitute newly discovered evidence pursuant to CPL § 440.10 (1)(g), and, as such, the motion to vacate should be denied.
II.) Defendant's Claim of Ineffective Assistance of Counsel :
At the outset, the Court hereby finds that it must deny defendant's claim of ineffective assistance of counsel, as such ground "was previously determined on the merits upon an appeal from the judgment" of conviction ( CPL § 440.10 [2][a] ), and, as noted above, the Third Department found the claim "to be lacking in merit" ( People v. Hartle , supra 159 AD3d at 1155 ). Although the analysis on the issue is scant, it is clear that the Third Department reviewed this claim on defendant's direct appeal and determined that he received meaningful representation. Accordingly, the claim is procedurally barred pursuant to CPL § 440.10 (2)(a), and, as such, it shall be summarily denied.
Even if the Court were to disregard the procedural bar and consider defendant's claim upon its contended merits, the undersigned would find that defendant received meaningful legal representation by his trial counsel and any purported conflict raised by defendant in his motion papers does not change that outcome.
As previously noted by the Third Department in People v. Fiorino , 130 AD3d 1376, 1380-1381 (3d Dept 2015), lv denied 26 NY3d 1087 (2015) :
"The case law makes clear that ‘[t]he constitutional right to effective assistance of counsel does not mean that the representation was error free in every respect, but simply that defendant was afforded a fair trial’ ( People v. Fulwood , 86 AD3d 809, 811, ... [3d Dept 2011], lv denied 17 NY3d 952 ... [2011] [internal quotation marks and citations omitted]; accord People v. Cade , 110 AD3d [1238, 1241] ... [3d Dept 2013]; People v. Bjork , 105 AD3d 1258, 1263, ... [3d Dept 2013], lv denied 21 NY3d 1040 ... [2013], cert denied ... 134 S.Ct. 1306 ... [2014] ). As a result, ‘isolated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is so serious that defendant did not receive a fair trial’ ( People v. Shuaib , 111 AD3d 1055, 1057 ... [3d Dept 2013], lv denied 24 NY3d 1046 ... [2014] [internal quotation marks, brackets and citations omitted]; see People v. Brabham , 126 AD3d 1040 [3d Dept 2015], lvs denied 25 NY3d 1160 ... [June 15, 2015] ). ‘So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met’ ( People v. Robinson , 123 AD3d 1224, 1227-1228 ... [3d Dept 2014], lvs denied 25 NY3d 992, 993, ... [2015] [internal quotation marks and citations omitted] ). Notably, ‘[w]hen reviewing a claim of ineffective assistance of counsel, courts must avoid confusing actual ineffectiveness with mere losing tatics, and a defendant must demonstrate the absence of strategic or reasonable explanations for counsel's alleged shortcomings’ ( People v. Griffin , 122 AD3d 1068, 1070, ... [3d Dept 2014], lv denied 25 NY3d 1164 ... [June 9, 2015] [internal quotation marks and citation omitted]".
Furthermore, "where a defendant makes a conflict-based claim of ineffective assistance of counsel, two questions arise. First the court must determine whether there was a potential conflict of interest. Second, a defendant must show that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation" (internal citation and quotation marks omitted ) ( People v. Konstantinides , 14 NY3d 1, 10 [2009], habeas corpus denied 2011 WL 3040383 [E.D.NY 2011] ). "The burden of showing that such a conflict exists rests with the defendant" ( People v. Wright , 129 AD3d 1217, 1218 [3d Dept 2015] ).
Having thoroughly reviewed the trial record, and having presided over the pretrial proceedings in this matter, the undersigned concurs with the People that defendant received effective, meaningful assistance of counsel. Inter alia , as a result of defense counsel's pretrial motion practice, two counts of the indictment were dismissed as defective. Two more counts of the indictment were dismissed by a trial motion to dismiss. Moreover, trial counsel offered a plausible defense, engaged in vigorous cross-examination of the People's witnesses, and made compelling opening and closing arguments. Subsequent to the jury's finding of guilt, defense counsel also submitted a valid, but ultimately unsuccessful, motion to set aside the verdict.
In relation to defendant's conflict-based claim of ineffective assistance of counsel, the Court finds that defendant has failed to demonstrate how attorney Rossi's perceived conflict prejudicially affected defendant's representation at trial. Accordingly, based upon the totality of the facts and circumstances, it is clear that defendant received meaningful representation of trial counsel. Therefore, such portion of defendant's motion to vacate judgment based upon his claim of ineffective assistance of counsel shall be denied, with prejudice.
III.) Defendant's Claim of Newly Discovered Evidence :
Having thoroughly reviewed the submissions of counsel and having considered the arguments made before the Court on March 25 and May 10, 2019, the Court hereby finds that the materials retrieved from defendant's cell phone do not constitute newly evidence pursuant to CPL § 440.10 (1)(g).
Initially, the undersigned recognizes that technological "advancements in science and/or medicine may constitute newly discovered evidence" ( People v. Bailey , 144 AD3d 1562, 1564 [4th Dept 2016] ; see also People v. Dabbs , 154 Misc 2d 671, 671-672 [Sup Ct, Westchester County 1991] [holding that "a technological advance in the nature of DNA analysis of physical evidence nine years after a crime [shall] justify vacating a conviction for that crime and dismissing the underlying indictment"]; People v. Callace , 151 Misc 2d 464 [County Ct, Suffolk County 1991] [finding that DNA evidence that was known to exist at the time of trial and had been previously tested constituted newly discovered evidence, as the subsequent test performed was not available at the time of trial and had gained general scientific acceptance by the courts of New York State]; People v. Chase , 8 Misc 3d 1016[A], 5-6 [County Ct, Washington County 2005] [finding that scientific advances subsequent to trial regarding the nature of propane discharged into open air which disproved the prosecution's case constituted newly discovered evidence] ).
However, having applied the six-factor test to determine whether material constitutes newly discovered evidence, the Court finds that defendant's motion falls short in several key respects. First, the January 14, 2019 letter affirmed by trial counsel is conclusory in nature and fails to demonstrate due diligence on trial counsel's part to confirm that retrieval of the deleted media was truly not possible at the time of trial in 2015. Trial counsel do not hold themselves out as experts in the forensic science used to retrieve digital media that has been deleted, and, as such, their claim that they were unaware of any technology available at the time of trial is deficient and fails to carry the day.
Moreover, the expert affidavit and report of Anthony "Tony" Martino are similarly flawed, as they fail to address efforts made at retrieval during the time of trial (see generally People v. Whitmore , 12 AD3d 845, 848 [3d Dept 2004], lv. denied 4 NY3d 892 [2005] [holding that the trial court properly denied defendant's 440.10 motion as he "provided no explanation as to why any alleged new evidence was not available at the time of trial"] ). Ultimately, the motion papers require the Court to take an intellectual leap by presuming that the technology needed to ‘root’ defendant's cell phone simply did not exist at the time of trial, without providing an adequate foundational ‘spring-board’ with which to make the jump.
Furthermore, there is no indication that trial counsel made effort to obtain the material from defendant's cell phone service provider. In that regard, the affidavit from defendant's mother fails to rectify this oversight, as there is no indication that her attempts were done on counsel's behalf. Furthermore, it stands to reason that the service provider would be unwilling to turn over the materials to anyone other than defendant himself.
Next, the Court finds that defendant's portrayal of the recovered photographs and text messages as newly discovered evidence is inaccurate. Defendant concedes that he knew that the media existed prior to trial and that he actively endeavored to delete the evidence from his cell phone. Having advised his trial attorneys as such, defendant now attempts to offer the photographs and text messages as newly discovered evidence based upon their subsequent retrieval from his cell phone. This conduct is inherently flawed as defendant was part and parcel to the exchange, and, as such, he knew full well of the communications and the factual information contained therein.
Given the circumstances, the Court does not find the material to constitute newly discovered evidence under CPL § 440.10 (2)(g), as defendant had knowledge of the exculpatory material before trial (see People v. Craft , 123 AD2d 481, 483 [3d Dept 1986], lv. denied 69 NY2d 745 [1987] ; People v. Cain , 96 AD3d 1072, 1073-1074 [2d Dept 2012] [holding that the factual allegations which formed the basis of the purported newly discovered testimonial evidence "were known to the defendant at the time of his trial. Therefore, the proffered testimony does not satisfy the requirement of CPL 440.10 (1)(g) that it be new evidence ‘discovered since the entry of a judgment based upon a verdict of guilty after trial"] ).
The undersigned also concurs with the People that the position now being taken by defendant is a radical shift from the strategy that was offered at trial. At trial, the defendant claimed actual innocence. "That strategy having failed, a new trial may not be granted pursuant to the statute pertaining thereto for the purpose of attempting a different stategy" ( People v. Wagner , 51 AD2d 186, 189 [3d 1976] ; see also 34B NY Jur. 2d Criminal Law: Procedure § 3475; 18B West's McKinney's Forms Criminal Procedure Law § 440:7 and People v. Whitmore , supra 12 AD3d at 848 [finding that "[t]he decision to not utilize an expert on child interviewing techniques was an exercise in judgment which defendant may not now second guess] ).
Finally, the undersigned would be remiss not to point out that the media was initially lost as a result of defendant's spoliation of evidence. The record clearly reflects that defendant has unclean hands, yet he now seeks to use the material to his benefit. It has been held that "[a] defendant who chooses to withhold evidence should not be given a new trial ‘on the basis of the evidence thus withheld’ " ( People v. Backus , 129 AD3d 1621, 1624 [4th Dept 2015], lv. denied 27 NY3d 991 [2016], quoting People v. Moore , 147 AD2d 924, 924 [4th Dept 1989], lv. denied 73 NY2d 1019 [1989] ). The Court finds the issues raised in this matter are analogous, as defendant knew of the factual information contained in the text messages and photographs he deleted from his phone; however, a decision was made not to pursue their use at trial. Having been found guilty after trial, defendant should not now be permitted to rely upon material he previously deleted in an effort to cover up his criminal conduct.
The Court has duly considered all other arguments raised by defendant and finds them to be without merit. Accordingly, defendant's motion to vacate judgment shall be denied, without a hearing.
NOW THEREFORE , for the reasons set forth herein, it is hereby
ORDERED that defendant's motion to vacate the judgment of conviction issued in the above-captioned proceeding is DENIED in its entirety.
People v. Hartle , 159 AD3d 1149, 1150 n [3d Dept 2018], lv. denied 31 NY3d 1082 [2018], citing People v. Glass , 150 AD3d 1408, 1409 n.1 [3d Dept 2017], lv. denied 30 NY3d 1115 [2018] ).