Opinion
No. 2014–1345QCR.
04-07-2017
The PEOPLE of the State of New York, Respondent, v. Wilfredo SYVILLE, Appellant.
ORDERED that the judgment of conviction is affirmed.
On March 2, 2013, the People charged defendant, in a criminal complaint, with assault in the third degree ( Penal Law § 120.00[1] ), resisting arrest ( Penal Law § 205.30 ), criminal contempt in the second degree ( Penal Law § 215.50[3] ), and harassment in the second degree ( Penal Law § 240.26[1] ), alleging that, on March 1, 2013, between 7:00 p.m. and 7:30 p.m. at the intersection of 80th Road and 188th Street, Queens, New York, defendant repeatedly "push[ed]" the complainant, "causing her to hit her head on her vehicle door," thereby causing "redness and swelling to her face and eye, scratches to her wrist, [and] substantial annoyance and alarm." According to the complaint, defendant also violated an order of protection against him and on the complainant's behalf. Defendant, who had remained at the scene after both he and the complainant had called 911, was charged with resisting the ensuing arrest. In a superseding prosecutor's information, the People added two new charges: endangering the welfare of a child with respect to one of the children defendant and the complainant have in common, and harassment in the second degree with respect to the other child.
At a jury trial, the prosecution elicited testimony from the complainant concerning her confrontation with defendant at a child's dance class approximately one hour before the roadside incident. In the course of that confrontation, according to the complainant, defendant placed his fingertips to her lips and repeatedly told her to "shush." There was no objection to this testimony, and defendant later testified that he had merely urged the complainant to remain quiet and denied that he had touched her lips. The court denied defense counsel's motion, at the close of the People's case, to dismiss the charge of harassment in the second degree with respect to the complainant "as duplicative." The jury convicted defendant of criminal contempt in the second degree, harassment in the second degree based on his conduct with respect to the complainant, and resisting arrest and acquitted him of the remaining charges. The court denied counsel's oral motion, at sentencing, to set aside the harassment conviction as duplicative and a violation of the court's Ventimiglia ruling (see People v. Ventimiglia, 52 N.Y.2d 350 [1981] ).
On appeal, defendant, deeming trial counsel's objections insufficient and untimely, argues that trial counsel's failure to object to the duplicative testimony, which, he alleges, provided a basis to convict defendant both of harassment in the second degree and criminal contempt in the second degree with respect to the incident at the dance class even though there were no references to that incident in the accusatory instrument, represented so significant a failing as to have deprived him of the effective assistance of counsel. For the reasons that follow, we affirm the judgment of conviction.
First, as a general matter, the challenged testimony was of probative value with respect to the context in which the parties' subsequent words and actions unfolded (see People v. Ely, 68 N.Y.2d 520, 529 [1986] [uncharged crime evidence admissible, among other things, where it is "inextricably interwoven' with directly related material in the sense that it is explanatory of the acts done or words used in the otherwise admissible part of the evidence' "], quoting People v. Ventimiglia, 52 N.Y.2d at 361 ; e.g. People v. Nicholas, 130 AD3d 1314, 1316 [2015] ; People v. Williams, 34 Misc.3d 142[A], 2012 N.Y. Slip Op 50089[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] ).
An accusatory instrument is duplicative when a single count charges more than one offense (see CPL 200.30[1] ; People v. Alonzo, 16 NY3d 267, 269 [2011] ; see also People v. Bauman, 12 NY3d 152, 154 [2009] ), an error of potentially reversible import in that duplicative pleading implicates the due process guarantees of the right to notice of the nature of the offense charged and an opportunity to defend, and to a unanimous verdict by the trier of fact as to every crime charged (see People v. Keindl, 68 N.Y.2d 410, 418 [1986] ; People v. Jean, 117 AD3d 875, 876 [2014] ). An accusatory instrument that is not facially duplicative may be rendered duplicative by testimony (e.g. People v. Singh, 128 AD3d 860, 861 [2015] [a count is rendered duplicative "where the evidence presented ... at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict' "], quoting People v. Jean, 117 AD3d at 877 ; see also People v. Levandowski, 8 AD3d 898, 899 [2004] ). A challenge to such testimony must be preserved by timely objection (see CPL 470.05[2] ; People v. Allen, 24 NY3d 441, 448 [2014] ; People v. Davis, 80 AD3d 623, 624 [2011] ; People v. Drysdale, 295 A.D.2d 533 [2002] ). Although in his motion to dismiss at the close of the People's case, defense counsel alluded to the harassment charge with respect to the complainant "as duplicative," it is "apparent from the substance of his arguments and their context" ( People v. Jagdharry, 118 AD3d 722, 723 [2014] ) that he was not basing his objections on a claim that the testimony rendered charges duplicative but that the harassment charge is ultimately subject to dismissal as a lesser included offense upon a conviction of assault in the third degree (see CPL 300.40[3][b] ). As the court properly ruled, the argument is without merit (see People v. Moyer, 27 N.Y.2d 252, 253–254 [1970] ; People v. Madison, 106 AD3d 1490, 1494 [2013] ). While, at sentencing, defense counsel orally moved to set aside the verdicts with respect to harassment in the second degree "which would necessitate a criminal contempt [conviction]," and a potential Ventimiglia violation with respect to the complainant's testimony, the objections were insufficiently specific as to the legal theory underlying the objection and untimely.
Further, having presented a case wherein he elicited testimony from the defendant on the matter and having failed to request a jury instruction limiting the use of such evidence or to object to the absence of same (see People v. Morris, 21 NY3d 588, 598 [2013] ; People v. Vanni, 9 Misc.3d 130 [A], 2005 N.Y. Slip Op 51577[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2005] ) at a time when the error could have been cured (see CPL 470.05 [2 ]; e.g. People v. Wood, 37 AD3d 283, 283 [2007] ), the claim is both unpreserved and waived by counsel's conduct of the defense (see e.g. People v. Jean, 117 AD3d at 878 ["the objection (to certain testimony presented by the prosecution) was waived when the defense elicited the same testimony on cross-examination' "], quoting People v. Stalter, 77 AD3d 776, 777 [2010] ; see also People v. Renaud, 137 AD3d 818, 820 [2016] ).
We cannot agree that trial counsel's failure to object to the challenged testimony represented the ineffective assistance of counsel. The Court of Appeals has repeatedly affirmed the utility of the preservation requirement, in particular where considerations outside the record may have guided a trial counsel's determination to decline to make such an objection (see People v. Allen, 24 NY3d at 448–449 ; People v. Becoats, 17 NY3d 643, 651 [2011] ; see also People v. Saintilus, 74 AD3d 996, 997 [2010] ; People v. Wood, 37 AD3d 283 ] ). As defendant made no motion pursuant to CPL 440.10 to challenge the quality of trial counsel's representation, we do not have the benefit of the appropriate exploration of dehors the record matters (see People v. Jarvis, 25 NY3d 968, 973 [2015] ; People v. Brown, 45 N.Y.2d 852, 853 [1978] ; People v. Rana, 48 Misc.3d 130[A], 2015 N.Y. Slip Op 51029[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ), in particular, that of trial strategy (see People v. Rivera, 71 N.Y.2d 705, 709 [1988] ), to which appellate courts of review accord considerable deference (see People v. Benevento, 91 N.Y.2d 708, 712 [1998] ; People v. Satterfield, 66 N.Y.2d 796, 799–800 [1985] ). Pursuant to the narrow scope of review permitted by the existing record (see People v. Troche, 81 AD3d 990, 991 [2011] ; People v. Lopez, 2 AD3d 234 [2003] ), and upon a review of the evidence, law, and circumstances of the case "viewed in totality and as of the time of the representation" ( People v. Oliveras, 21 NY3d 339, 346 [2013] ), we conclude that defendant was afforded meaningful representation and the effective assistance of counsel under the New York Constitution (see People v. Benevento, 91 N.Y.2d at 713–714 ; People v. Baldi, 54 N.Y.2d 137, 147 [1981] ) and under the United States Constitution (see Strickland v. Washington, 466 U.S. 668 [1984] ).
Here, trial counsel appeared familiar with the applicable law and relevant facts, and advanced defendant's entitlements to testing the admissibility of evidence, both at hearings and at trial. He invoked discovery rights and the sanctions for untimely production. During jury selection, he asked questions pertinent to the jurors' understanding of defendant's rights and their function as the finders of fact, and later "presented a clear and cogent opening and summation, and adequately cross-examined the People's witnesses' " in a fashion that evidenced "prepared and pursued trial strategies and defense theories' " ( People v. Cruz, 127 AD3d 987, 988 [2015], quoting People v. Tomlinson, 67 AD3d 826, 827 [2009] ). Counsel successfully objected at numerous junctures to the prosecutor's questions or to witnesses' answers, and obtained defendant's acquittal of half of the offenses charged, a further measure of counsel's effectiveness (see e.g. People v. Scott, 129 AD3d 1306, 1309 [2015] ). Where, as here, an attorney's "overall performance is adequate' " ( People v. Harris, 26 NY3d 321, 327 [2015], quoting People v. Turner, 5 NY3d 476, 481 [2005] ; see also People v. Ambers, 26 NY3d 313, 320 [2015] ), claims of the ineffective assistance of counsel have been rejected "despite significant mistakes by defense counsel" ( People v. Turner, 5 NY3d at 480 ).
While "a single failing in an otherwise competent performance [may be] so egregious and prejudicial' as to deprive a defendant of his constitutional right' " (id., quoting People v. Caban, 5 NY3d 143, 152 [2005] ; see People v. Brunner, 16 NY3d 820, 821 [2011] ), such failings normally take the form of omissions that represent "clear cut, or ... dispositive error" ( People v. Calderon, 66 AD3d 314, 320 [2009] ). Although a claim that trial evidence rendered counts duplicative, if meritorious, may constitute reversible error, the record herein does not support an inference that the error was so "clear-cut and completely dispositive" ( People v. Turner, 5 NY3d at 481 ) as to render an otherwise competent representation ineffective (see People v. Brunner, 16 NY3d at 821 [while "substantial," defendant's unraised CPL 30.30 claim was not clearly so "completely dispositive" as to render its omission fatal to the representation] ). The record supports an inference that, as a matter of trial strategy, counsel invoked defendant's behavior at the dance studio on cross-examination and on summation to establish that because defendant had exercised restraint and self-control notwithstanding the complainant's provocations, it was less likely that he would subsequently lose that control and commit the acts alleged by the People. "[C]ounsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective' " ( People v. Parson, 27 NY3d 1107, 1108 [2016], quoting People v. Benevento, 91 N.Y.2d at 712 ; see e.g. People v.. Echavarria, 53 AD3d 859, 864 [2008] [counsel's decision to elicit potentially incriminating testimony was made pursuant to a legitimate, if unsuccessful, trial strategy and did not constitute ineffectiveness]; cf. People v. Kratzert, 24 Misc.3d 130[A], 2009 N.Y. Slip Op 51343[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2009] ).
Thus, examining the record as a whole, we do not find that the testimony rendered it "nearly impossible to determine the particular acts upon which the jury reached its verdict' " ( People v. Black, 65 AD3d 811, 813 [2009], quoting People v. Dalton, 27 AD3d 779, 781 [2006] ). The prosecutor's conduct of the case aside from the complained-of testimony made it clear that the charged offenses were committed by defendant's conduct subsequent to the dance-class confrontation (see People v. Kessler, 122 AD3d 1402, 1405 [2014] ["the prosecutor's summation made it clear that defendant was charged with only (one particular act of sexual contact) and, thus, there is no reasonable possibility that the jury may have convicted defendant of different acts"]; see also People v. Spencer, 119 AD3d 1411, 1412–1413 [2014] ; People v. Watson, 115 AD3d 687, 689 [2014] ). In light of the scope and weight of the evidence of the charged offenses relative to the complained-of testimony, there is little likelihood that the jury convicted defendant on the basis of the latter (see People v. Tomlinson, 53 AD3d 798, 799 [2008] ; People v. Weber, 25 AD3d 919, 922 [2006] ; cf. People v. Singh, 128 AD3d at 861 ; People v. Dalton, 27 AD3d at 781 ).
Accordingly, the judgment of conviction is affirmed.
SOLOMON, J.P., WESTON and ELLIOT, JJ., concur.