Opinion
645 KA 17–00615
08-22-2019
The PEOPLE of the State of New York, Respondent, v. Maurice M. MAHONEY, Defendant–Appellant.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK, FULTON, OF COUNSEL), FOR RESPONDENT.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK, FULTON, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of sexual abuse in the first degree ( Penal Law § 130.65[3] ), defendant contends that Supreme Court deprived him of his right to a fair trial and an impartial jury by failing to excuse four prospective jurors. Inasmuch as the record does not establish that defendant exhausted his peremptory challenges, he is not entitled to reversal based on the alleged errors during jury selection (see CPL 270.20[2] ). We reject defendant's contention that he was denied effective assistance of counsel based upon defense counsel's failure to challenge the relevant prospective jurors inasmuch as defendant failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge those prospective jurors (see People v. Slack, 137 A.D.3d 1568, 1570, 27 N.Y.S.3d 301 [4th Dept. 2016], lv denied 27 N.Y.3d 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016]; People v. Boykins, 134 A.D.3d 1542, 1542, 22 N.Y.S.3d 774 [4th Dept. 2015], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ; People v. Swan, 126 A.D.3d 1527, 1527, 4 N.Y.S.3d 462 [4th Dept. 2015], lv denied 26 N.Y.3d 972, 18 N.Y.S.3d 608, 40 N.E.3d 586 [2015] ). Contrary to defendant's related contention, defense counsel was not ineffective for failing to move for a mistrial or to have a new panel of jurors seated after the charges pertaining to a second victim were dismissed. There is no basis for concluding that the dismissal of those charges resulted in the jury being prejudiced against defendant, and thus any such motion had "little or no chance of success" ( People v. Nuffer, 70 A.D.3d 1299, 1300, 894 N.Y.S.2d 698 [4th Dept. 2010] ). Furthermore, "[i]t is well settled that the jury is presumed to have followed ... curative instruction[s]" ( People v. Spears, 140 A.D.3d 1629, 1630, 32 N.Y.S.3d 771 [4th Dept. 2016], lv denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] [internal quotation marks omitted] ), and here the court instructed the jury that it was "not to speculate and consider [the dismissed charges] whatsoever in one way or the other to [the] betterment or detriment of the prosecution or the defendant."
Defendant failed to preserve for our review his contention related to the testimony of an expert witness with respect to child sexual abuse accommodation syndrome (see People v. Ennis, 107 A.D.3d 1617, 1618–1619, 969 N.Y.S.2d 284 [4th Dept. 2013], lv denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013], reconsideration denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We reject defendant's alternative contention that defense counsel was ineffective in his cross-examination of the expert and for failing to otherwise challenge the expert's testimony or qualifications (see generally People v. Lathrop, 171 A.D.3d 1473, 1473–1474, 99 N.Y.S.3d 152 [4th Dept. 2019] ; Ennis, 107 A.D.3d at 1618–1619, 969 N.Y.S.2d 284 ).
By failing to object to certain remarks made by the prosecutor during summation, defendant failed to preserve his further contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see People v. Lewis, 154 A.D.3d 1329, 1330, 63 N.Y.S.3d 156 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ). In any event, that contention lacks merit. While it was improper for the prosecutor to discuss her own personal experiences as a child during summation (see generally People v. Grice, 100 A.D.2d 419, 422, 474 N.Y.S.2d 152 [4th Dept. 1984] ), the court immediately interjected and told the prosecutor that her conduct was improper and that the jury should "[d]isregard it." Under these circumstances, the prosecutor's isolated comment, which was met with an immediate curative instruction, was not so egregious as to deprive defendant of a fair trial (see People v. Greene, 13 A.D.3d 991, 993, 787 N.Y.S.2d 466 [3d Dept. 2004], lv denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005] ). Additionally, the further challenged comments made by the prosecutor during summation were within "the broad bounds of rhetorical comment permissible during summation" ( People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249 [4th Dept. 2011], lv denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] [internal quotation marks omitted]; see People v. Jones, 155 A.D.3d 1547, 1548, 64 N.Y.S.3d 803 [4th Dept. 2017], amended on rearg 156 A.D.3d 1493, 65 N.Y.S.3d 820 [4th Dept. 2017], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 205, 122 N.E.3d 1118 [2019] ). Contrary to defendant's related contention, we conclude that, inasmuch as defendant was not denied a fair trial by any of the alleged instances of prosecutorial error, defense counsel's failure to object to those instances did not constitute ineffective assistance of counsel (see People v. Swan, 126 A.D.3d 1527, 1527, 4 N.Y.S.3d 462 [4th Dept. 2015], lv denied 26 N.Y.3d 972, 18 N.Y.S.3d 608, 40 N.E.3d 586 [2015] ).
Defendant's contention that defense counsel was ineffective for allegedly failing to instruct defendant about his right to testify, to call defendant's daughter as a witness, and to investigate another perpetrator are based on facts dehors the record and should be raised by way of a CPL article 440 motion (see generally People v. Carrasquillo, 170 A.D.3d 1592, 1594, 96 N.Y.S.3d 436 [4th Dept. 2019], lv denied 33 N.Y.3d 1029, 102 N.Y.S.3d 512, 126 N.E.3d 162 [2019] ; People v. Williams, 48 A.D.3d 1108, 1109, 850 N.Y.S.2d 321 [4th Dept. 2008], lv denied 10 N.Y.3d 872, 860 N.Y.S.2d 498, 890 N.E.2d 261 [2008] ).
Finally, with respect to defendant's remaining allegations of ineffective assistance of counsel, we note that the constitutional right to effective assistance of counsel "does not guarantee a perfect trial, but assures the defendant a fair trial" ( People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ). Having examined the record before us, we conclude that "the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).