Opinion
No. 2009–1628 Q CR.
2012-01-20
The PEOPLE of the State of New York, Respondent, v. Earl A. WILLIAMS, Appellant.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph Zayas, J.), rendered May 26, 2009. The judgment convicted defendant, after a nonjury trial, of attempted sexual abuse in the second degree and attempted endangering the welfare of a child.
Present: WESTON, J.P., GOLIA and RIOS, JJ.
ORDERED that the judgment of conviction is affirmed.
Following a nonjury trial, defendant was convicted of attempted sexual abuse in the second degree (Penal Law §§ 110.00, 130.60[2] ) and attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10). The accusatory instrument alleged that, on July 1, 2007, while the 13–year–old complainant “was changing in her bedroom the defendant ..., her father, walked in and began rubbing her breasts and then placed his hand down her pants and began rubbing her vagina.” Prior to trial, the People moved to, among other things, elicit evidence regarding three prior bad acts of defendant which he had allegedly committed against the complainant. After a hearing ( see People v. Ventimiglia, 52 N.Y.2d 350, 359–360 [1981] ), the Criminal Court granted the People's motion, and this evidence was adduced at trial.
On appeal, defendant contends that the Criminal Court erroneously determined that the People could elicit evidence of his prior bad acts. In making its determination, the court stated that it was allowing the People to elicit this evidence in order to show a pattern of conduct, intent, and absence of mistake, and to provide background information on the nature of the relationship between defendant and the complainant. The court also stated that it “would not consider it as proof whatsoever that the defendant possessed a propensity for a disposition to commit the crime charged .” Thus, in permitting this evidence, the court clearly did not base its finding of guilt on collateral matters, or convict defendant because of his past ( see People v. Alvino, 71 N.Y.2d 233, 241 [1987] ). Nor was the sole purpose of this evidence to show defendant's bad character or propensity towards crime ( id.). Consequently, we find that the court did not improvidently exercise its discretion when it balanced the probative value of the evidence against any unfair prejudice to defendant ( see People v. Dorm, 12 NY3d 16, 17 [2009];People v. Spotford, 85 N.Y.2d 593, 597 [1995];People v. Ventimiglia, 52 N.Y.2d at 359–360) and determined that the People could elicit such evidence.
Defendant's challenge to the prosecutor's alleged misconduct during summation is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Romero, 7 NY3d 911, 912 [2006] ). In any event, in a nonjury trial, the court is presumed to have considered only competent evidence in reaching its verdict ( see People v. Kozlow, 46 AD3d 913, 915 [2007] ), and a “judge is deemed uniquely capable of distinguishing those issues properly presented to him from those not” (People v. Reyes, 116 A.D.2d 602, 603 [1986] ).
To the extent that defendant's contention that he was denied the effective assistance of counsel rests on matters outside the record, we find that it is not reviewable on direct appeal as it implicates matters of trial strategy and/or concerns conversations or decisions not made in the courtroom which are dehors the record on appeal. Defendant was required to raise this contention in a CPL 440.10 motion so that it could have been evaluated upon a complete record ( see People v. Rivera, 71 N.Y.2d 705, 709 [1988];People v. Bregaudit, 31 Misc.3d 152[A], 2011 N.Y. Slip Op 51136[U] [App Term, 9th & 10th Jud Dists 2011]; People v. Chaplin, 16 Misc.3d 137[A], 2007 N.Y. Slip Op 51741[U] [App Term, 2d & 11th Jud Dists 2007] ). Insofar as the existing record permits review of defendant's contention that he was denied the effective assistance of counsel ( see People v. Drago, 50 AD3d 920 [2008] ), we find that defense counsel provided defendant with meaningful representation in accordance with the New York State standard ( seeN.Y. Const, art I, § 6; People v. Benevento, 91 N.Y.2d 708 [1998];People v. Baldi, 54 N.Y.2d 137 [1981];People v. Johnson, 71 AD3d 1048 [2010];People v. Garrett, 68 AD3d 781 [2009] ). In addition, counsel's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard ( seeU.S. Const Amend VI; Strickland v. Washington, 466 U.S. 688 [1984] ).
Accordingly, the judgment of conviction is affirmed. GOLIA and RIOS, JJ., concur.
WESTON, J.P., dissents in a separate memorandum.
WESTON, J.P., dissents and votes to reverse the judgment of conviction and remit the matter to the Criminal Court for a new trial in the following memorandum.
In my opinion, the Criminal Court improvidently exercised its discretion in admitting evidence of the prior, uncharged sexual abuse. On this ground, alone, I would vote to reverse the judgment of conviction and order a new trial.
It is well established that evidence of prior, uncharged criminal conduct is inadmissible to demonstrate a defendant's propensity to commit the crime charged ( see People v. Molineux, 168 N.Y. 264 [1901] ). Such evidence is admissible only when it “has a bearing upon a material aspect of the People's case” and its probative worth outweighs its prejudicial effect (People v. Santarelli, 49 N.Y.2d 241, 247 [1980];see People v. Shorey, 172 A.D.2d 634 [1991] ). “Furthermore, the evidence must be directly related to the issue upon which it is offered or must be inextricably interwoven' with directly related material” (People v. Shorey, 172 A.D.2d at 634, quoting People v. Ely, 68 N.Y.2d 520, 529 [1986] ).
Here, evidence that defendant had allegedly improperly touched his daughter and made comments of a sexual nature to her on at least three prior occasions was extremely prejudicial and lacked any probative value. Although the majority concludes that the evidence was properly admitted to provide background information and to show a pattern of conduct, intent, and absence of mistake, the majority does not explain how such evidence was probative of a material issue in the case. Nothing in the record suggests that defendant's intent to commit the crime was at issue, or that the court below, as the trier of fact, required “background information” to put the crime charged in context ( cf. People v. Dorm, 12 NY3d 16 [2009] [proof of prior conflicts between defendant and the victim was properly admitted to provide the jury with background information about the couple's relationship and explain aspects of the victim's testimony that might otherwise have been unbelievable]; People v. Valath, 56 AD3d 578 [2008] [where defendant was charged with menacing, evidence of a prior incident was properly admitted to show defendant's intent to put complainant in fear for her physical safety]; People v. Howard, 285 A.D.2d 560 [2001] [court properly admitted four incidents of defendant's prior assaults on victim, where such proof established defendant's motive and intent, and refuted his contention that victim's death was either accidental or a suicide] ). To the contrary, evidence that defendant had allegedly engaged in prior, similar acts of sexual misconduct was probative of nothing other than to prove that the alleged acts of child sexual abuse occurred. In these circumstances, the Criminal Court improvidently exercised its discretion in admitting this evidence ( see People v. Singh, 186 A.D.2d 285, 287–288 [1992] ). Since the evidence of defendant's guilt—which rested primarily on the credibility of his daughter's testimony—was not overwhelming, the court's error in admitting evidence of defendant's prior bad acts was not harmless ( see People v. Graham, 251 A.D.2d 426, 427 [1998] ).
Accordingly, I vote to reverse the judgment of conviction and remit the matter to the Criminal Court for a new trial.