Opinion
614 KA 18-02439
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Sante D. TURNER, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the first degree ( Penal Law § 130.35 [2] ) and criminal trespass in the second degree (§ 140.15 [1]). By making only a general motion to dismiss the charge of rape in the first degree after the People rested their case (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ) and by failing to renew his motion with respect to both charges at the close of his case (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ), defendant failed to preserve for our review his contention that his conviction is not supported by legally sufficient evidence (see People v. Morris , 126 A.D.3d 1370, 1371, 6 N.Y.S.3d 815 [4th Dept. 2015], lv denied 26 N.Y.3d 932, 17 N.Y.S.3d 95, 38 N.E.3d 841 [2015] ). Nonetheless, " ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ " ( People v. Stepney , 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Here, viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, it cannot be said that the jurors "failed to give the evidence the weight it should be accorded" ( People v. Albert , 129 A.D.3d 1652, 1653, 12 N.Y.S.3d 462 [4th Dept. 2015], lv denied 27 N.Y.3d 990, 38 N.Y.S.3d 101, 59 N.E.3d 1213 [2016] ; see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's further contention, County Court properly refused to submit to the jury the charge of rape in the third degree ( Penal Law § 130.25 [3] ) as a lesser included offense of rape in the first degree ( § 130.35 [2] ) because there was no "reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater offense" ( CPL 300.50 [6] ; see People v. Stephanski , 286 A.D.2d 859, 860, 730 N.Y.S.2d 468 [4th Dept. 2001] ).
We reject defendant's contention that the court abused its discretion in allowing the People to introduce a video recording of defendant's interview by the police. Contrary to defendant's contention, although some of defendant's statements at the end of the recording "were not entirely clear, they were not ‘so inaudible and indistinct that the jury would have to speculate concerning [their] contents and would not learn anything relevant from them’ " ( People v. Warmley , 179 A.D.3d 1537, 1538, 118 N.Y.S.3d 866 [4th Dept. 2020], lv denied 35 N.Y.3d 945, 124 N.Y.S.3d 284, 147 N.E.3d 554 [2020] ; see People v. Cooke , 119 A.D.3d 1399, 1400, 989 N.Y.S.2d 753 [4th Dept. 2014], affd 24 N.Y.3d 1196, 3 N.Y.S.3d 755, 27 N.E.3d 469 [2015], cert denied 577 U.S. 1011, 136 S.Ct. 542, 193 L.Ed.2d 434 [2015] ; People v. Jackson , 94 A.D.3d 1559, 1561, 943 N.Y.S.2d 365 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] ).
Defendant also contends that the court erred in admitting in evidence testimony about his flight from the police on the day of his arrest. Contrary to defendant's contention, the evidence of his flight was relevant inasmuch as it was indicative of his consciousness of guilt (see People v. Yazum , 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263 [1963], rearg denied 15 N.Y.2d 679, 255 N.Y.S.2d 1027, 204 N.E.2d 217 [1964] ; People v. Fitzgerald , 84 A.D.3d 1397, 1397, 924 N.Y.S.2d 289 [2d Dept. 2011], lv denied 17 N.Y.3d 816, 929 N.Y.S.2d 804, 954 N.E.2d 95 [2011] ; People v. McDuffie , 26 A.D.3d 667, 669, 810 N.Y.S.2d 528 [3d Dept. 2006], lv denied 7 N.Y.3d 759, 819 N.Y.S.2d 885, 853 N.E.2d 256 [2006] ). Defendant failed to preserve for our review his contention that the prejudicial effect of that evidence outweighed its probative value inasmuch as he did not object to the testimony on that ground (see People v. Cullen , 110 A.D.3d 1474, 1475, 972 N.Y.S.2d 792 [4th Dept. 2013], affd 24 N.Y.3d 1014, 997 N.Y.S.2d 348, 21 N.E.3d 1009 [2014] ; People v. Curtis , 222 A.D.2d 237, 237-238, 635 N.Y.S.2d 186 [1st Dept. 1995], affd 89 N.Y.2d 1003, 657 N.Y.S.2d 395, 679 N.E.2d 634 [1997] ). In any event, that contention lacks merit (see Yazum , 13 N.Y.2d at 304, 246 N.Y.S.2d 626, 196 N.E.2d 263 ; People v. Martinez , 298 A.D.2d 897, 899, 749 N.Y.S.2d 118 [4th Dept. 2002], lv denied 98 N.Y.2d 769, 752 N.Y.S.2d 10, 781 N.E.2d 922 [2002], cert denied 538 U.S. 963, 123 S.Ct. 1752, 155 L.Ed.2d 515 [2003], reh denied 539 U.S. 911, 123 S.Ct. 2266, 156 L.Ed.2d 126 [2003] ).
We reject defendant's further contention that the court's Sandoval ruling constituted an abuse of discretion (see People v. Sandoval , 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] ). Here, the court ruled that the People would be permitted to cross-examine defendant for impeachment purposes on his 2007 conviction of criminal possession of a controlled substance in the third degree. Contrary to defendant's assertion, that conviction was probative of his credibility inasmuch as such acts showed the "willingness ... [of defendant] to place the advancement of his individual self-interest ahead of principle or of the interests of society" ( id. at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ; see People v. Taylor , 140 A.D.3d 1738, 1739, 34 N.Y.S.3d 310 [4th Dept. 2016] ; People v. Carter , 34 A.D.3d 1342, 1342, 825 N.Y.S.2d 612 [4th Dept. 2006], lv denied 8 N.Y.3d 844, 830 N.Y.S.2d 703, 862 N.E.2d 795 [2007] ). Defendant's related assertion that the 2007 conviction was too remote in time to be probative is without merit (see People v. Scott , 189 A.D.3d 2062, 2063, 138 N.Y.S.3d 761 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 152, 167 N.E.3d 1287 [2021] ). Contrary to defendant's further assertion, "the court's Sandoval compromise[ on the remaining offenses], in which it limited questioning on defendant's prior convictions for [those] offenses to whether [he] had been convicted of a felony or misdemeanor ..., ‘reflects a proper exercise of the court's discretion’ " ( People v. Stevens , 109 A.D.3d 1204, 1205, 971 N.Y.S.2d 637 [4th Dept. 2013], lv denied 23 N.Y.3d 1043, 993 N.Y.S.2d 256, 17 N.E.3d 511 [2014] ; see People v. Standsblack , 162 A.D.3d 1523, 1525, 79 N.Y.S.3d 420 [4th Dept. 2018], lv denied 32 NY3d 1008, 86 N.Y.S.3d 766, 111 N.E.3d 1122 [2018]; People v. Butler , 140 A.D.3d 1610, 1613, 33 N.Y.S.3d 602 [4th Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ).
We also reject defendant's contention that the court failed to make a sufficient inquiry into the complaints about defense counsel underlying his request for substitution of counsel. Defendant failed to make "specific factual allegations of ‘serious complaints about counsel’ " that would have required the court to conduct a minimal inquiry ( People v. Porto , 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ). Rather, defendant " ‘made only vague assertions that defense counsel was not in frequent contact with him and did not aid in his defense’ " ( People v. Jones , 149 A.D.3d 1576, 1577, 52 N.Y.S.3d 804 [4th Dept. 2017], lv denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] ; see People v. MacLean , 48 A.D.3d 1215, 1217, 850 N.Y.S.2d 819 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008], reconsideration denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ). In any event, inasmuch as defendant did not subsequently express dissatisfaction with defense counsel and, instead, expressly stated in response to questioning by the court that he had decided to remain represented by defense counsel, we conclude that defendant abandoned his request for substitution of counsel (see People v. Avent , 178 A.D.3d 1403, 1404-1405, 116 N.Y.S.3d 449 [4th Dept. 2019], lv denied 35 N.Y.3d 940, 124 N.Y.S.3d 273, 147 N.E.3d 543 [2020] ; People v. Bennett , 94 A.D.3d 1570, 1571, 943 N.Y.S.2d 371 [4th Dept. 2012], lv denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012], reconsideration denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ; People v. Ocasio , 81 A.D.3d 1469, 1470, 917 N.Y.S.2d 803 [4th Dept. 2011], lv denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011], cert denied 565 U.S. 910, 132 S.Ct. 318, 181 L.Ed.2d 196 [2011] ). Contrary to defendant's contention, we conclude that any error by the court in allowing, after the jury had commenced deliberations, the redaction from the victim's medical records of a statement she made is harmless. The evidence of defendant's guilt is overwhelming and, particularly considering that the medical records were never published to the jury or provided to the jury during deliberations, there is no "significant probability" that the jury would have acquitted defendant but for the error ( People v. Crimmins , 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; see People v. Washington , 89 A.D.3d 1140, 1141-1142, 931 N.Y.S.2d 787 [3d Dept. 2011], lv denied 18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717 [2012] ; see generally Harris v. Campbell , 155 A.D.3d 1622, 1623, 65 N.Y.S.3d 616 [4th Dept. 2017] ).
Finally, we conclude that the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ).