Opinion
608 KA 18-01836
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Robert G. CASE, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
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: On appeal from a judgment convicting him upon a jury verdict of rape in the first degree ( Penal Law § 130.35 [1] ) and unlawful imprisonment in the first degree (§ 135.10), defendant contends that the allegedly improper admission of evidence of prior bad acts denied him a fair trial. We reject that contention. "Evidence of a defendant's prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant's criminal propensity" ( People v. Dorm , 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ). Contrary to defendant's assertion, we are not limited in our review of County Court's multi-pronged Molineux /Ventimiglia ruling to the grounds overtly stated by the court in its decision (see People v. Garrett , 23 N.Y.3d 878, 885 n. 2, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014], rearg denied 25 N.Y.3d 1215, 16 N.Y.S.3d 508, 37 N.E.3d 1151 [2015] ). Here, the victim's testimony concerning uncharged acts that preceded the events charged in the indictment was admissible "to complete the narrative of the events charged in the indictment ..., [to] provide[ ] necessary background information" ( People v. Workman , 56 A.D.3d 1155, 1156, 868 N.Y.S.2d 430 [4th Dept. 2008], lv denied 12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100 [2009] [internal quotation marks omitted]; see People v. Griffin , 111 A.D.3d 1413, 1414-1415, 975 N.Y.S.2d 306 [4th Dept. 2013], lv denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ; People v. Justice , 99 A.D.3d 1213, 1215, 951 N.Y.S.2d 802 [4th Dept. 2012], lv denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 [2013] ), and to place "the charged conduct in context" ( People v. Leeson , 12 N.Y.3d 823, 827, 880 N.Y.S.2d 895, 908 N.E.2d 885 [2009] [internal quotation marks omitted]; see People v. Maxey , 129 A.D.3d 1664, 1665, 14 N.Y.S.3d 845 [4th Dept. 2015], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 112, 59 N.E.3d 1224 [2016], reconsideration denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] ). We further conclude that the court did not abuse its discretion in admitting the evidence at issue (see Dorm , 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; see generally People v. Henson , 33 N.Y.2d 63, 72, 349 N.Y.S.2d 657, 304 N.E.2d 358 [1973] ; People v. Molineux , 168 N.Y. 264, 293-294, 61 N.E. 286 [1901] ). Furthermore, even assuming, arguendo, that the court erred in admitting any part of the evidence, we conclude that such error is harmless (see generally People v. Frankline , 27 N.Y.3d 1113, 1115, 36 N.Y.S.3d 834, 57 N.E.3d 26 [2015] ; People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant further contends that the court failed to conduct a sufficiently particularized analysis of the admission of evidence of certain of the prior bad acts and failed to weigh the probative value of the evidence against its prejudice. Inasmuch as defendant did not raise those contentions in the trial court, he failed to preserve them for our review (see CPL 470.05 [2] ; People v. Woods , 72 A.D.3d 1563, 1564, 899 N.Y.S.2d 763 [4th Dept. 2010], lv denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010] ). In any event, the record "reflects that [the court] was aware of its obligation to balance the probative value of such evidence against its prejudicial effect" ( People v. Brown , 128 A.D.3d 1183, 1186, 9 N.Y.S.3d 434 [3d Dept. 2015], lv denied 27 N.Y.3d 993, 38 N.Y.S.3d 103, 59 N.E.3d 1215 [2016] ; see People v. Pigford , 148 A.D.3d 1299, 1302, 48 N.Y.S.3d 837 [3d Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ; People v. Meseck , 52 A.D.3d 948, 950, 860 N.Y.S.2d 263 [3d Dept. 2008], lv denied 11 N.Y.3d 739, 864 N.Y.S.2d 397, 894 N.E.2d 661 [2008] ) and that the court engaged in such a balancing here. In addition, defendant "failed to preserve for our review his contention[ ] that ... the court's Molineux instruction was inadequate" ( People v. Dei , 2 A.D.3d 1459, 1460, 769 N.Y.S.2d 772 [4th Dept. 2003], lv denied 1 N.Y.3d 626, 777 N.Y.S.2d 25, 808 N.E.2d 1284 [2004] ; see generally People v. Winston , 169 A.D.3d 1361, 1362-1363, 92 N.Y.S.3d 768 [4th Dept. 2019], lv denied 33 N.Y.3d 983, 101 N.Y.S.3d 248, 124 N.E.3d 737 [2019] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice.
We agree with defendant that the court erred in admitting annotated cell phone records in evidence. The People failed to present a foundation for the admission of the cell phone records or the annotations thereon (see People v. Jones , 158 A.D.3d 1103, 1105, 70 N.Y.S.3d 669 [4th Dept. 2018] ), therefore they should have been excluded (see People v. Ramos , 13 N.Y.3d 914, 914-915, 895 N.Y.S.2d 294, 922 N.E.2d 880 [2010] ). Especially in light of the extensive use that defense counsel made of the records to support the defense, however, we conclude that any error in the admission of those records is harmless because the evidence of guilt is overwhelming and there is no significant probability that the error infected the verdict (see Crimmins , 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
Defendant contends that the court erred in denying his challenges for cause to several prospective jurors. Even assuming, arguendo, that the court erred in denying those challenges, we conclude that reversal is not required because defendant failed to exhaust his peremptory challenges (see People v. LaValle , 3 N.Y.3d 88, 102, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004] ; People v. Lynch , 95 N.Y.2d 243, 248, 715 N.Y.S.2d 691, 738 N.E.2d 1172 [2000] ; People v. Stewart , 192 A.D.3d 1498, 1499, 144 N.Y.S.3d 497 [4th Dept. 2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 539, 170 N.E.3d 413 [2021] ).
Defendant further contends that he was denied effective assistance of counsel by a litany of alleged errors, including defense counsel's failure to request additional limiting instructions concerning the Molineux /Ventimiglia evidence, his failure to exhaust the defense's peremptory challenges, and his failure to object to testimony concerning sexual assault and abuse in domestic violence cases and testimony regarding the DNA analysis. We disagree.
" ‘Although the failure to request limiting instructions may constitute ineffective assistance of counsel if the error were so serious that defendant did not receive a fair trial’ " ( People v. Orcutt , 51 A.D.3d 1404, 1405, 860 N.Y.S.2d 924 [4th Dept. 2008] ), here, defense counsel may have had a strategic reason for failing to request a further limiting instruction inasmuch as he may not have wished to draw further attention to the Molineux /Ventimiglia evidence (see People v. Williams , 107 A.D.3d 1516, 1516-1517, 966 N.Y.S.2d 784 [4th Dept. 2013], lv denied 21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860 [2013] ; see generally People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). Contrary to defendant's contention that defense counsel was ineffective in failing to exhaust the defense's peremptory challenges in order to protect defendant's ability to contest the court's denial of his challenges for cause, defendant "failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge" any additional prospective jurors ( People v. Mahoney , 175 A.D.3d 1034, 1035, 108 N.Y.S.3d 104 [4th Dept. 2019], lv denied 35 N.Y.3d 943, 124 N.Y.S.3d 293, 147 N.E.3d 563 [2020] ; see Stewart , 192 A.D.3d at 1499, 144 N.Y.S.3d 497 ; People v. Carpenter , 187 A.D.3d 1556, 1557, 132 N.Y.S.3d 207 [4th Dept. 2020], lv denied 36 N.Y.3d 970, 138 N.Y.S.3d 468, 162 N.E.3d 697 [2020] ). Similarly, defendant's contentions concerning the domestic violence testimony, the prosecutor's remarks on that testimony during summation, and the testimony of a forensic scientist regarding the DNA analysis are "based largely on [defendant's] hindsight disagreements with ... trial strategies, and defendant failed to meet his burden of establishing the absence of any legitimate explanations for those strategies" ( People v. Rogers , 70 A.D.3d 1340, 1341, 894 N.Y.S.2d 313 [4th Dept. 2010], lv denied 14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015 [2010], cert denied 562 U.S. 969, 131 S.Ct. 475, 178 L.Ed.2d 302 [2010] [internal quotation marks omitted]). Upon our review of all of defendant's allegations of error concerning the representation provided by defense counsel, we conclude that defendant "failed to satisfy the well-settled, high burden of showing that he was deprived of a fair trial and meaningful representation sufficient to warrant a reversal" ( People v. Flores , 84 N.Y.2d 184, 189, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ; see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, the sentence is not unduly harsh or severe.