Opinion
1405 KA 14–01085
06-07-2019
The PEOPLE of the State of New York, Respondent, v. Eloy COLON, Also Known as Eloy Colon Torres, Defendant–Appellant.
DIANNE C. RUSSELL, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
DIANNE C. RUSSELL, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, 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 criminal sexual act in the first degree ( Penal Law § 130.50[3] ), arising from anal sexual conduct perpetrated by defendant on the seven-year-old victim. The case was initiated in Supreme Court (Valentino, J.) and then transferred to County Court (Connell, J.) prior to trial.
Contrary to defendant's contention, Supreme Court properly refused to allow him access to various mental health and school records of the victim. Such records are confidential (see People v. Tirado, 109 A.D.3d 688, 688, 970 N.Y.S.2d 342 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013], reconsideration denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014], cert denied 574 U.S. ––––, 135 S.Ct. 183, 190 L.Ed.2d 142 [2014] ; People v. Boyea, 222 A.D.2d 937, 938, 636 N.Y.S.2d 136 [3d Dept. 1995], lv denied 88 N.Y.2d 934, 647 N.Y.S.2d 167, 670 N.E.2d 451 [1996] ), and defendant failed to establish that the interests of justice significantly outweighed their confidentiality inasmuch as he failed to demonstrate that the records contained information relevant to defendant's guilt or innocence (see Tirado, 109 A.D.3d at 688–689, 970 N.Y.S.2d 342 ; People v. Bassett, 55 A.D.3d 1434, 1437, 866 N.Y.S.2d 473 [4th Dept. 2008], lv denied 11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441 [2009] ) or to the victim's ability to perceive and recall events (see People v. Brown, 24 A.D.3d 884, 887, 806 N.Y.S.2d 262 [3d Dept. 2005], lv denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377 [2006] ; cf. People v. Baranek, 287 A.D.2d 74, 78–79, 733 N.Y.S.2d 704 [2d Dept. 2001] ). Indeed, the record reflects that Supreme Court reviewed the requested records in camera and concluded that they contained no such information (see generally People v. Kiah, 156 A.D.3d 1054, 1056–1057, 67 N.Y.S.3d 337 [3d Dept. 2017], lv denied 31 N.Y.3d 984, 77 N.Y.S.3d 662, 102 N.E.3d 439 [2018] ). Contrary to defendant's related contention, County Court did not abuse its discretion in preventing defense counsel from asking prosecution witnesses about the victim's mental health diagnoses and medications inasmuch as there was no indication that those lines of inquiry were likely to produce material relevant to the trial, i.e., to the determination of defendant's guilt or innocence (see Tirado, 109 A.D.3d at 688–689, 970 N.Y.S.2d 342 ; Brown, 24 A.D.3d at 887, 806 N.Y.S.2d 262 ). For the same reason, we conclude that the court did not abuse its discretion in precluding testimony from defendant's expert psychologist (see generally People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63 [2001] ; People v. Lemery, 107 A.D.3d 1593, 1594, 967 N.Y.S.2d 809 [4th Dept. 2013], lv denied 22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552 [2013] ).
The record on appeal belies defendant's contention that Supreme Court failed to conduct an in camera review of the victim's mental health records from two hospitals (see generally People v. Green, 72 A.D.3d 1601, 1602, 899 N.Y.S.2d 704 [4th Dept. 2010] ; People v. Gholston, 130 A.D.2d 843, 844, 515 N.Y.S.2d 628 [3d Dept. 1987], lv denied 70 N.Y.2d 799, 522 N.Y.S.2d 117, 516 N.E.2d 1230 [1987] ). Additionally, in light of the lengthy and unexplained delay of defendant in pursuing this appeal, we reject defendant's contention that he is entitled to summary reversal of the judgment of conviction on the ground that those records were eventually purged and destroyed by County Court (see People v. Delarosa, 282 A.D.2d 296, 296, 723 N.Y.S.2d 361 [1st Dept. 2001], lv denied 99 N.Y.2d 557, 754 N.Y.S.2d 209, 784 N.E.2d 82 [2002] ; see also People v. Carter, 91 A.D.3d 967, 967–968, 937 N.Y.S.2d 333 [2d Dept. 2012], lv denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ; People v. Quinones, 36 A.D.3d 459, 460, 831 N.Y.S.2d 31 [1st Dept. 2007], lv denied 8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462 [2007] ). In any event, defendant failed to make an "appropriate showing" that "alternative methods to provide an adequate record [were] not available" ( People v. Glass, 43 N.Y.2d 283, 286, 401 N.Y.S.2d 189, 372 N.E.2d 24 [1977] ; see People v. Yavru–Sakuk, 98 N.Y.2d 56, 59, 745 N.Y.S.2d 787, 772 N.E.2d 1145 [2002] ).
We reject defendant's contention that County Court's jury charge with respect to the concepts of reasonable doubt and proof beyond a reasonable doubt was erroneous and confusing. The court's charge, read as a whole, conveyed to the jury the proper standard that " ‘a reasonable doubt is to be distinguished from a doubt based on a whim, sympathy, or some other vague reason’ " ( People v. Allen, 301 A.D.2d 57, 62, 750 N.Y.S.2d 700 [4th Dept. 2002], lv denied 99 N.Y.2d 625, 760 N.Y.S.2d 106, 790 N.E.2d 280 [2003] ). The fact that the court defined a reasonable doubt as a doubt for which one is "able to assign a reason" does not constitute error. The same concept, in fact, appears in the Criminal Jury Instructions (see CJI2d[NY] Presumption of Innocence, Burden of Proof, Proof Beyond a Reasonable Doubt; see also 1 CJI[NY] 6.20).
Contrary to defendant's further contention, the court's Allen charge as a whole was "encouraging rather than coercive" ( People v. Ford, 78 N.Y.2d 878, 880, 573 N.Y.S.2d 442, 577 N.E.2d 1034 [1991] ). The fact that the court referred to the possibility of another jury selection and a retrial in the event the jury could not reach a verdict did not render the Allen charge coercive. Those concepts appear at least twice in the standard deadlock charge in the Criminal Jury Instructions (see CJI2d[NY] Deadlock Charge).
Defendant additionally contends that the court erred in denying his motion seeking a mistrial or, alternatively, to strike the testimony of the victim on the ground that the prosecutor violated the court's directive not to speak to the victim during a break in testimony. That contention is without merit. The record establishes that there was no substantive violation of the court's directive, and thus we cannot conclude that the court erred in denying the motion (see People v. Garner, 145 A.D.3d 1573, 1574, 43 N.Y.S.3d 838 [4th Dept. 2016], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ; see also People v. Smith, 28 A.D.3d 204, 205, 812 N.Y.S.2d 512 [1st Dept. 2006], lv denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260 [2006] ). Defendant's contention that he was deprived of a fair trial because the court failed to instruct the jury that it could not consider matters relating to sentence or punishment during the course of its deliberations is not preserved for our review (see CPL 470.05[2] ) and, in any event, is without merit (see People v. Diaz, 191 A.D.2d 642, 642–643, 595 N.Y.S.2d 218 [2d Dept. 1993], lv denied 81 N.Y.2d 1072, 601 N.Y.S.2d 591, 619 N.E.2d 669 [1993] ). We have examined defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.