Opinion
14425, 14838.
Decided March 18, 2004.
Appeals (1) from a judgment of the County Court of Ulster County (Bruhn, J.), rendered August 16, 2002, upon a verdict convicting defendant of the crimes of rape in the first degree, sodomy in the first degree (two counts), sexual abuse in the first degree, rape in the third degree, sodomy in the third degree (two counts), intimidating a witness in the third degree, assault in the third degree and endangering the welfare of a child, and (2) by permission, from an order of said court, entered July 7, 2003, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Dreyer Boyajian L.L.P., Albany (William J. Dreyer of counsel), for appellant.
Donald A. Williams, District Attorney, Kingston (Eric Schneider of counsel), for respondent.
Before: Cardona, P.J., Mercure, Peters, Mugglin and Kane, JJ.
MEMORANDUM AND ORDER
Defendant's convictions stem from his involvement in the June 30, 2001 rape, oral sodomy and sexual abuse of a 15-year-old in the Town of Shawangunk, Ulster County. Initially, we address defendant's CPL 440.10 motion wherein he claims he received ineffective assistance of counsel. Based upon the trial record and the submissions on the motion, County Court did not err in deciding that motion without a hearing ( see CPL 440.30; People v. Satterfield, 66 N.Y.2d 796, 799; People v. Beverly, 299 A.D.2d 744, 745, lv denied 99 N.Y.2d 652). Notably, the judge who determined the motion was the same judge who presided at the trial ( see People v. Turcotte, 252 A.D.2d 818, 820, lv denied 92 N.Y.2d 1054).
The crux of defendant's argument is that defense counsel was so sick from Lyme disease that he was unable to adequately prepare for and conduct the trial. The record reveals that on June 18, 2002, the day after his diagnosis, defense counsel appeared in court accompanied by defendant for trial and requested a one-week adjournment in accordance with his doctor's recommendation. County Court granted a two-day adjournment. Thereafter, on June 20, 2002, the trial proceeded without any further indication from defense counsel that he was ill, unable to function, or needed further time to prepare his case.
"The crucial question is whether the defense counsel's condition affected his performance at the trial" ( People v. Badia, 159 A.D.2d 577, 578, lv denied 76 N.Y.2d 784 [citations omitted]). Here, while defense counsel admitted in an affidavit that there were times "when [he] was aware of difficulty in concentrating and being very tired," we note that he pursued the defense of factual innocence at trial, effectively cross-examined witnesses bringing out inconsistencies in their testimony, made appropriate trial objections and motions, and made a cogent opening statement and a well-reasoned closing statement, all in keeping with his trial strategy. In fact, County Court specifically noted defense counsel's appropriate performance at trial and found no indication that he was affected by illness or "a discernable drop off from his usual high level of professional competence."
As to specific allegations of ineffective assistance, the claimed omissions included the failure to hire medical or forensic experts, interview prosecution witnesses, pursue previously planned but unspecified questions during cross-examination and provide adequate time for discussion with defendant during evening sessions after trial days and over the weekend between trial days. Even if deemed true, these allegations are premised upon defendant's disagreement with defense counsel's tactics and strategies, which, in our view, fail to rise to the level of true ineffectiveness, "particularly when viewed in the context of the totality of the circumstances of the representation provided at the trial level" ( People v. Saunders, 301 A.D.2d 869, 872, lv denied 100 N.Y.2d 542; see People v. Benevento, 91 N.Y.2d 708, 712; People v. Baldi, 54 N.Y.2d 137, 146). "`[O]bjectively evaluated,'" ( People v. Benevento, supra at 712, quoting People v. Angelakos, 70 N.Y.2d 670, 673), we find defense counsel's performance "consistent with [the] strategic decisions of a `reasonably competent attorney'" ( People v. Benenvento, supra at 712, quoting People v. Satterfield, supra at 799) and conclude that defendant received meaningful representation and, therefore, the effective assistance of counsel ( see People v. Benevento, supra at 712; People v. Baldi, supra at 147; People v. Saunders, supra at 872).
Defendant further contends that County Court abused its discretion in its Sandoval ruling by permitting the prosecution to inquire into an alleged uncharged assault by him upon his wife. We disagree. In our view, no Sandoval ruling was required because the prosecution sought to introduce the alleged prior bad act only to rebut defendant's evidence of good character, if admitted. An advance ruling on the admissibility of this evidence was unnecessary since the admission of character evidence does not implicate the procedures in Sandoval ( see People v. Sandoval, 34 N.Y.2d 371, 373 n 1 [1974]; People v. Jones, 121 A.D.2d 398, 398-399, appeal dismissed 69 N.Y.2d 707). During defendant's testimony, he attested to his good character by submitting his military service record. Therefore, he opened the door to questioning concerning the prior bad act ( see People v. Jones, supra at 398-399; cf. People v. Rojas, 97 N.Y.2d 32, 38; People v. Rivera, 306 A.D.2d 186, 187, lv denied 100 N.Y.2d 598; People v. Bailey, 303 A.D.2d 1011, 1011, lv denied 100 A.D.2d 578).
Next, contrary to defendant's contention, we find the People established a proper foundation for the testimony of Erin Ptak, a sexual assault nurse examiner (hereinafter SANE), who conducted an examination of the victim at the hospital. She testified that visible lacerations in the victim's vaginal area and a tear in her hymenal tissue were consistent with forcible compulsion. The record shows that Ptak's competency as a SANE was derived from both formal training and actual experience ( see Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 398; People v. Munroe, 307 A.D.2d 588, 591, lv denied 100 N.Y.2d 644; People v. Burt, 270 A.D.2d 516, 518). Ptak testified that she treated five to eight rape patients a year during the eight years she spent as an emergency room registered nurse before undergoing her SANE training. She indicated that she had 40 or more hours of SANE training to become certified as a SANE, involving evidence collection through gynecological examination, as well as the physical, pharmacological and emotional treatment of rape patients. Since receiving her SANE training, she had treated 41 SANE cases, assisted in another 13 and consulted in eight pediatric cases. We note that "`expert medical testimony need not come from a licensed doctor'" ( People v. Munroe, supra at 591, quoting People v. Kehn, 109 A.D.2d 912, 914; see People v. Rice, 159 N.Y. 400, 410; People v. Zavaro, 138 A.D.2d 430, 431, lv denied 71 N.Y.2d 1035). Under the circumstances, we cannot say that County Court abused its discretion in determining that Ptak was qualified to offer an opinion regarding the victim's injuries.
Turning to defendant's claim that the 16-year sentence imposed upon his conviction for rape in the first degree was excessive, we note that it was within the statutory parameters for a class B violent felony and was not the maximum authorized ( see Penal Law § 70.02[a]; § 130.35[1]). Despite defendant's lack of a prior criminal record, we cannot say that County Court abused its sentencing discretion under the circumstances herein, given the brutal nature of the crimes perpetrated upon the young victim. Moreover, our review of the record discloses no extraordinary circumstances warranting exercise of our discretion in the interest of justice to modify the sentence ( see CPL 470.15 [b]).
Finally, we have examined defendant's contentions regarding alleged prosecutorial misconduct and find that they are unpreserved and, in any event, lacking in merit.
Mercure, Peters, Mugglin and Kane, JJ., concur.
ORDERED that the judgment and order are affirmed.