Opinion
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Richard M. SWITTS, Defendant–Appellant. (Appeal No. 1.).
Linda M. Campbell, Syracuse, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DeJOSEPH, AND SCUDDER, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, six counts of criminal sexual act in the second degree (Penal Law § 130.45[1] ). In appeal No. 2, defendant appeals from an order denying, without a hearing, his motion pursuant to CPL 440.10 seeking to vacate the judgment of conviction.
We reject defendant's contention in appeal No. 1 that County Court erred in excluding evidence based on the Rape Shield Law (CPL 60.42 ; see People v. Scott, 16 N.Y.3d 589, 593–594, 925 N.Y.S.2d 384, 949 N.E.2d 475 ). All of the evidence in question, including evidence related to emergency contraception, was within the scope of the statute as "[e]vidence of [the] victim's sexual conduct" (CPL 60.42 ; see generally People v. Vogel, 66 A.D.3d 1367, 1368, 885 N.Y.S.2d 678, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 ; People v. Davis, 45 A.D.3d 1351, 1351–1352, 845 N.Y.S.2d 598 ), and "defendant failed to demonstrate that such evidence was ‘relevant and admissible in the interests of justice’ " (Davis, 45 A.D.3d at 1351, 845 N.Y.S.2d 598, quoting CPL 60.42[5] ; see People v. Halter, 19 N.Y.3d 1046, 1049, 955 N.Y.S.2d 809, 979 N.E.2d 1135 ; People v. Williams, 61 A.D.3d 1383, 1383, 879 N.Y.S.2d 264, lv. denied 13 N.Y.3d 751, 886 N.Y.S.2d 105, 914 N.E.2d 1023 ). Inasmuch as defendant was able to testify to alternative explanations for the ambiguous content of a recorded telephone conversation he had with the victim that was alleged by the People to refer to the charged crimes, the court did not abuse its discretion in precluding testimony that the conversation referred to other sexual conduct involving the victim (see generally Halter, 19 N.Y.3d at 1049–1050, 955 N.Y.S.2d 809, 979 N.E.2d 1135 ; People v. Simmons, 106 A.D.3d 1115, 1116, 965 N.Y.S.2d 618, lv. denied 22 N.Y.3d 1043, 981 N.Y.S.2d 377, 4 N.E.3d 389 ). Moreover, the alleged connection between one of the precluded lines of testimony and a motive for the victim to fabricate her allegations was speculative and " ‘so tenuous that the [line of testimony] was entirely irrelevant’ " (People v. Carrasquillo, 85 A.D.3d 1618, 1619, 925 N.Y.S.2d 743, lv. denied 17 N.Y.3d 814, 929 N.Y.S.2d 803, 954 N.E.2d 94 ; see People v. Perryman, 178 A.D.2d 916, 917, 578 N.Y.S.2d 785, lv. denied 79 N.Y.2d 1005, 584 N.Y.S.2d 460, 594 N.E.2d 954 ).
Contrary to defendant's further contention in appeal No. 1, the court did not err in denying his Batson application concerning the People's use of a peremptory challenge to excuse the sole Asian– American prospective juror. The prosecutor gave race-neutral reasons for excluding that prospective juror, i.e., her body language (see People v. Harris, 50 A.D.3d 1608, 1608, 857 N.Y.S.2d 840, lv. denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 ; People v. Bodine, 283 A.D.2d 979, 979, 725 N.Y.S.2d 498, lv. denied 96 N.Y.2d 898, 730 N.Y.S.2d 795, 756 N.E.2d 83 ), her disclosure that her stepdaughter had a conviction from a neighboring county (see People v. Ball, 11 A.D.3d 904, 905, 782 N.Y.S.2d 228, lv. denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976, reconsideration denied 4 N.Y.3d 471, 790 N.Y.S.2d 653, 824 N.E.2d 54 ; see also People v. Buntley, 286 A.D.2d 909, 909, 730 N.Y.S.2d 752, lv. denied 97 N.Y.2d 751, 742 N.Y.S.2d 611, 769 N.E.2d 357 ), and her performance of work for the court's law clerk (see generally People v. Allen, 86 N.Y.2d 101, 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ), and defendant did not meet his ultimate burden of establishing that those reasons were pretextual (see People v. Torres, 129 A.D.3d 1535, 1536, 10 N.Y.S.3d 771, lv. denied 26 N.Y.3d 936, 17 N.Y.S.3d 99, 38 N.E.3d 845 ).
Defendant contends in appeal No. 2 that the court erred in denying his CPL 440.10 motion without a hearing to the extent that it alleged that the People committed Brady and Rosario violations by failing to disclose a flash drive containing a typewritten statement by the victim that a police investigator used as a basis for the victim's supporting deposition. The People disclosed hard copies of the typewritten statement and deposition prior to trial, and defense counsel did not raise any objection when the investigator mentioned the flash drive in his trial testimony. Even assuming, arguendo, that the relevant part of the motion was not subject to denial on procedural grounds (cf. CPL 440.10[2][b] ; [3][a] ), we reject defendant's contention. Defendant did not make a prima facie showing of a reasonable possibility that the nondisclosure of the flash drive contributed to his conviction. Thus, regardless of whether he made a specific discovery request encompassing the flash drive for purposes of his Brady claim, he failed to establish materiality under Brady or prejudice under Rosario (see People v. Fuentes, 12 N.Y.3d 259, 263–264, 879 N.Y.S.2d 373, 907 N.E.2d 286, rearg. denied 13 N.Y.3d 766, 886 N.Y.S.2d 866, 915 N.E.2d 1163 ; People v. Jackson, 78 N.Y.2d 638, 648–649, 578 N.Y.S.2d 483, 585 N.E.2d 795 ; People v. Pennington, 107 A.D.3d 1602, 1603, 966 N.Y.S.2d 803, lv. denied 22 N.Y.3d 958, 977 N.Y.S.2d 189, 999 N.E.2d 554 ; People v. Saxton, 93 A.D.3d 1077, 1078–1079, 941 N.Y.S.2d 308, lv. denied 18 N.Y.3d 998, 945 N.Y.S.2d 652, 968 N.E.2d 1008 ).
Finally, we reject defendant's contention in both appeals that he was denied effective assistance of counsel. Defendant was not entitled to a hearing on the part of his CPL 440.10 motion alleging ineffective assistance of counsel because the trial record and the motion submissions, including an affidavit from defendant's trial counsel, sufficiently established that counsel's trial strategy was consistent with the actions of a reasonably competent attorney (see People v. Satterfield, 66 N.Y.2d 796, 799–800, 497 N.Y.S.2d 903, 488 N.E.2d 834 ; People v. King, 44 A.D.3d 366, 366, 843 N.Y.S.2d 224, lv. denied 9 N.Y.3d 1035, 852 N.Y.S.2d 20, 881 N.E.2d 1207 ; see generally People v. Henderson, 27 N.Y.3d 509, 514, 35 N.Y.S.3d 274, 54 N.E.3d 1145 ). Contrary to defendant's contentions, counsel was not ineffective in failing to conduct a more "hard-hitting" cross-examination of the victim (see People v. Izzo, 104 A.D.3d 964, 967, 961 N.Y.S.2d 333, lv. denied 21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 ; People v.
De Marco, 33 A.D.3d 1045, 1046, 822 N.Y.S.2d 325 ; see also People v. Gaffney, 30 A.D.3d 1096, 1097, 816 N.Y.S.2d 653, lv. denied 7 N.Y.3d 789, 821 N.Y.S.2d 818, 854 N.E.2d 1282 ), or in failing to use the jury selection process to demonstrate that expert testimony on child sexual abuse accommodation syndrome should be precluded because the subject was within the understanding of the jurors (see generally People v. Nicholson, 26 N.Y.3d 813, 829, 28 N.Y.S.3d 663, 48 N.E.3d 944 ; People v. Morgan, 77 A.D.3d 1419, 1420, 908 N.Y.S.2d 779, lv. denied 15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.