Opinion
Index No. 2020-0023
12-12-2023
The People of the State of New York, v. Jovon Monk, Defendant.
Marlene O. Tuczinki, Esq., attorney for Defendant Deputy District Attorney Andrew J. Bonavia, Esq.
Unpublished Opinion
Marlene O. Tuczinki, Esq., attorney for Defendant
Deputy District Attorney Andrew J. Bonavia, Esq.
SCOTT A. MILLER, J.
By motion submitted August 15, 2023, defendant Jovon Monk, by and through counsel (Marlene O. Tuczinki, Esq.), moved to vacate his conviction pursuant to Criminal Procedure Law § 440.10(1)(h), asserting that he received ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and Article I, § 6 of the New York State Constitution. The People filed opposition to defendant's motion on October 31, 2023 (Deputy District Attorney Andrew J. Bonavia, Esq). After review of all motion papers, affidavits, attached exhibits and the prior court proceedings, as more fully set forth below, defendant's motion is DENIED.
Background and Procedural History
On January 12, 2022, following a jury trial in Tompkins County Court (Miller, J.), defendant was convicted of Rape in the First Degree, Criminal Sexual Act in the First Degree, and Sexual Abuse in the First Degree. On April 1, 2002, the court sentenced the defendant to concurrent terms of incarceration totaling 12 years determinate with 12 years of post-release supervision. Defendant has not yet perfected his direct appeal to the Third Department. Defendant now moves for an order vacating the three convictions pursuant to CPL §440.10(1)(h) arguing that he received ineffective assistance of counsel from his trial attorney (Kevin Kelly, Esq.).
Defendant argues various grounds in support of his 440 motion and asserts he received ineffective assistance of counsel due to the totality of his counsel's errors. Defendant asserts his counsel erred and was ineffective because 1) counsel failed to call a DNA expert witness as a trial witness, 2) counsel ineffectively cross-examined witness Rachel Hamilton, 3) counsel ineffectively cross-examined the victim (KP), 4) counsel forced defendant to testify against his wishes, 5) counsel failed to request a missing witness charge, 6) counsel failed to request a lesser included offense, 7) counsel's opening and closing statements were ineffective, and 8) counsel failed to object to the presence of a child in the courtroom during readback.
In People v. Wright, 25 N.Y.3d 769, 779 (2015), the Court of Appeals has explained:
Every defendant is constitutionally entitled to effective assistance of counsel, meaning under our state standards that "[s]o 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. Baldi, 54 N.Y.2d 137, 147 [1981], citing People v. Droz, 39 N.Y.2d 457 [1976]). Where a defendant claims that counsel's performance is deficient the defendant must" 'demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings" (People v. Benevento, 91 N.Y.2d 708, 712, [1998]. (emphasis added)
Furthermore, in People v. Rivera, 71 N.Y.2d 705, 708 (1988), the Court of Appeals stated:
A convicted defendant, with the benefit of hindsight, often can point out where he or she thinks trial counsel went awry. "But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. 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. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400). (emphasis added)
The Court agrees with the People's recitation of the underlying facts. This Court presided over defendant's trial. Viewing the totality of the circumstances, defense counsel most certainly provided meaningful representation to the defendant. Defense counsel strategically pursued a meaningful and arguable defense. Defense counsel filed appropriate pre-trial motions, conducted meaningful cross-examination of the People's witnesses, both lay and expert, and counsel provided meaningful and strategic opening and closing statements. Essentially this was a case about credibility. The victim testified that the defendant forcibly subjected her to oral vaginal contact and also forcibly penetrated her vagina with his penis, although he did not ejaculate. The defendant conceded that he consensually licked and kissed the victim's inner thighs, so there was no real controversy surrounding the fact that defendant's DNA was recovered from the victim. The defendant testified that all of his sexual contact with KP was consensual and limited to kissing and licking her thighs. The defendant testified that he never had oral vaginal contact with KP and he never penetrated KP's vagina with his penis. The jury believed KP and rejected the defendant's version.
1. Failure to call DNA expert witness Dr. Allison Y. Eastman
Defendant's failure to call a DNA expert was clearly a "tactical decision" and was based upon the sound trial strategy of utilizing Dr. Eastman merely as a consultant in order to assist counsel in his "cross-examination of the People's expert[s]" in order to "expose defects in [the] expert[s]' presentation[s]." People v Caldavado, 166 A.D.3d 792, 794 (2nd Dept. 2018). (Defendant's Exhibit B, p.23). Additionally, Dr. Eastman was not available for in-person testimony at the time of defendant's trial, further demonstrating a legitimate explanation for her absence. (Defendant's Exhibit B, p.22).
Dr. Eastman never provided a detailed explanation of her opinion and merely indicated "possible areas" for her testimony. (Defendant's Exhibit C, "Potential Topics for Testimony"). Dr. Eastman suggested that i) NYSP laboratory did not identify semen or seminal fluid, ii) DNA possibly came from skin, saliva, blood or sweat, and not necessarily seminal fluid, iii) because blue toluidine dye was applied to KP's "external genitalia" and the same blue toluidine dye was also found on the swabs "one cannot conclude with 100% certainty that the internal male DNA was there as a result of penetration, but instead, could be merely the result of contamination," iv) the DNA collected was "not inconsistent" with having originated from male skin cells originating from "external areas" of KP's legs and thighs and having been pushed into the vagina during the speculum examination." (Defendant's Exhibit C, points 1-4). Defense counsel's consultation with Dr. Eastman was obviously effective as defense counsel through cross-examination of the People's expert witnesses was able to elicit all of the points raised by Dr. Eastman. Forensic Scientist Allard agreed on cross-examination that she did not identify any sperm, nor could she identify seminal fluid as the source of the DNA, and the DNA could have originated from skin cells or sweat. (People's Exhibit A, pp. 9-10). Nurse DiBartolo conceded on cross-examination that it was possible that the blue toluidine dye was transferred from outside of KP's external vaginal area to the internal area when she used the speculum. (People's Exhibit A, p. 14). Forensic Scientist Richmond also acknowledged on cross-examination that sperm or seminal fluid was not identified, and the source of the DNA could not be determined. She also conceded that she could not conclude that defendant's penis or tongue touched or penetrated KP's vagina. (People's Exhibit A, pp. 11-14). The People are correct, in that, by the close of the People's case, defense counsel had effectively and meaningfully utilized the consultation with Dr. Eastman, and had revealed all of the evidence needed from the People's experts on cross-examination, to wit: that it was possible that defendant's DNA originated only on her thighs from defendant's licking and kissing and said DNA was pushed into the vagina as a result of the use of the speculum as demonstrated by the presence of the blue toluidine dye which may have travelled from the victim's external vaginal area into the internal areas also as result of the speculum use. Thus, having effectively cross-examined the People's experts, there was no need to call Dr. Eastman and have her likewise subjected to cross-examination by the People. Furthermore, the defense had a sound and strategic reason not to call Dr. Eastman. Had Dr. Eastman been called, on cross-examination she would have had to concede that Nurse DiBartolo "performed the toluidine blue examination prior to the speculum examination." (Defendant's Exhibit C). As the blue dye examination revealed that DNA was found on KP's posterior fourchette, the outer edge of the vagina, Dr. Eastman would have had to concede that such could have been the result of defendant's licking KP's vagina, profoundly impeaching defendant's testimony that he had only kissed and licked KP's inner thighs. Defense counsel's decision to only consult with Dr. Eastman and not call her as a witness was clearly based upon sound and strategic trial strategy.
2. Defense counsel's cross-examination of witness Rachel Hamilton
Defendant complains in hindsight that his counsel was ineffective in cross-examining Rachel Hamilton. First, had counsel object to Hamilton's testimony concerning her cocaine use with defendant on the evening of the sexual assault, such objection would have been overruled, as defendant's drug use immediately prior to the sexual assault was highly relevant. Furthermore, the fact that information was elicited during cross-examination which was harmful to the defendant does not equate with ineffective assistance of counsel when viewing the totality of the circumstances. "[A] reviewing court must avoid confusing mere losing tactics and according undue significance to retrospective analysis." People v. Yelle, 303 A.D.2d 1043 (4th Dept. 2003). Defense counsel's cross-examination of Hamilton was clearly part of a strategy to impeach her credibility by demonstrating that she used cocaine, would drive under the influence of drugs, and was an unfit mother. Additionally, defense counsel made a strategic decision that being forthcoming about defendant's drug use and parole status would demonstrate that while defendant has a history of drug use, he was no rapist. The Court also notes that the jury was given the following proper limiting instruction during final instructions:
Previous Criminal Conduct:
You may consider whether a witness has been convicted of a crime or has engaged in criminal conduct, and if so, whether and to what extent it affects the truthfulness of that witness's testimony. You are not required to reject the testimony of a witness who has been convicted of a crime or has engaged in criminal conduct, or to accept the testimony of a witness who has not. You may, however, consider whether a witness's criminal conviction or conduct has affected the truthfulness of the witness's testimony. With respect to the defendant, such prior convictions or criminal conduct are not evidence of defendant's guilt in this case, or evidence that defendant is a person who is disposed to commit crimes. You are permitted to consider such convictions or conduct only to evaluate the defendant's truthfulness. (People v. Jovon Monk, Final Jury Instructions)
3. Defense counsel's cross-examination of the victim (KP)
Defense counsel's cross-examination strategy with respect to the victim was sound and strategic and must not be judged in hindsight merely because defendant was convicted. Although defense counsel could have more forcefully cross-examined the victim, it cannot be concluded that counsel "lacked a strategic reason or other legitimate explanation for the manner in which he cross-examined the victim." People v. Stettin, 167 A.D.3d 1245, 1250 (3rd Dept. 2018). Defense counsel's decision to not forcefully attack the victim on cross-examination, but rather pursue a strategy of suggesting to the jury that it was both possible that the victim believed her version and the defendant was also truthful in his assertion that he and KP engaged in consensual sexual conduct limited to him kissing and licking KP's thighs was a sound and reasonable trial strategy.
4. Defense counsel forced Defendant to testify against his wishes
Defendant's claim that defense counsel forced him to testify is without record support. Furthermore, the only way defendant could assert his defense that KP engaged in consensual sexual conduct with him and that he limited his mouth contact to her thighs was through his testimony. Just because the jury believed KP and rejected defendant's testimony does not equate with ineffective assistance of counsel. It was reasonable, and in fact imperative, that defendant testify. The fact that the jury disbelieved defendant and his defense was ultimately unsuccessful does not mean that counsel failed to provide effective assistance. People v. Perulli, 217 A.D.3d 1133 (3rd Dept. 2023).
5. Counsel's failure to request a missing witness charge
Even if trial counsel had requested a missing witness charge for Amy Furman, the Court would have denied such request for the reason's articulated by the People in their 440 opposition papers. (Bonavia at pp. 22-23).
6. Counsel's failure to request a lesser included offense of sexual abuse in the third degree
The People are correct that even if defense counsel had timely requested a lesser included charge of Sexual Abuse in the Third Degree, such lesser included is not a lesser included of either Rape in the First Degree or Criminal Sexual Act in the First Degree, both class-B violent felony offenses. Sexual Abuse in the Third Degree is only a lesser included offense of Sexual Abuse in the First Degree, a class-D violent felony offense. Defense counsel's failure to timely request such lesser was a sound trial strategy to avoid a compromise verdict, and in this case would have had no impact on the guilty verdicts for Rape in the First Degree or Criminal Sexual Act in the First Degree.
7. Counsel's opening and closing statements were ineffective
Defense counsel's opening and closing statements were effective and meaningful and were consistent with defendant's trial strategy of attempting to raise reasonable doubt on the issues of consent, forcible compulsion, whether defendant's mouth made contact with the victim's vagina, and whether the defendant's penis penetrated the victim's vagina. Defense counsel's strategy of not aggressively attacking the victim as a liar, but rather his thoughtful argument that the victim could honestly believe her version but simply be mistaken, and the defendant likewise could have testified truthfully, was effective. In other words, it was possible for the jury to believe both KP and the defendant, thus demonstrating the existence of reasonable doubt.
8. Counsel's failure to object to a child's presence in the courtroom during readback
There is no evidence that the jury was distracted, disrupted, or prejudiced in any way by the fact that the prosecuting attorney briefly got up and ushered a child out of the courtroom when the child began to cry and whimper during a portion of readback by the court reporter. Defense counsel's failure to object was not ineffective as the child's outburst was brief and the prosecutor immediately took curative action. There is nothing to indicate that the jury was in any way negatively impacted or prejudiced against the defendant as a result of this brief occurrence.
Viewed in totality, under the circumstances of this particular case, defense counsel provided meaningful representation. People v. Rivera, 71 N.Y.2d 705 (1988).
It is hereby, ORDERED, Defendant's CPL Article 440 motion is DENIED.
This constitutes the Decision and Order of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.