Opinion
230 KA 18–01413
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Robert J. HEALY, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN MINISTERO OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN MINISTERO OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, 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 after a jury trial of three counts of rape in the second degree ( Penal Law § 130.30[1] ), two counts of criminal sexual act in the second degree (§ 130.45[1] ), and one count of endangering the welfare of a child (§ 260.10[1] ). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction inasmuch as his general motion for a trial order of dismissal was not " ‘specifically directed’ at" the alleged shortcomings in the evidence asserted on appeal ( People v. Contreras , 154 A.D.3d 1320, 1320, 62 N.Y.S.3d 671 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018], quoting People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Williams , 110 A.D.3d 1458, 1459, 973 N.Y.S.2d 506 [4th Dept. 2013], lv denied 22 N.Y.3d 1160, 984 N.Y.S.2d 644, 7 N.E.3d 1132 [2014] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), 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] ; People v. Muscarella , 132 A.D.3d 1288, 1289, 17 N.Y.S.3d 229 [4th Dept. 2015], lv denied 26 N.Y.3d 1147, 32 N.Y.S.3d 61, 51 N.E.3d 572 [2016] ).
We reject defendant's further contention that Supreme Court abused its discretion in refusing to direct production of the complainant's psychiatric records. Defendant failed to show " ‘a reasonable likelihood that the records might contain material bearing on the reliability and accuracy of the [complainant's trial] testimony’ " ( People v. Duwe , 164 A.D.3d 1256, 1257, 83 N.Y.S.3d 582 [2d Dept. 2018], lv denied 32 N.Y.3d 1110, 91 N.Y.S.3d 362, 115 N.E.3d 634 [2018], reconsideration denied 32 N.Y.3d 1203, 99 N.Y.S.3d 231, 122 N.E.3d 1144 [2019] ; see People v. Duran , 276 A.D.2d 498, 498, 713 N.Y.S.2d 561 [2d Dept. 2000] ; see generally People v. Cox , 145 A.D.3d 1507, 1508, 44 N.Y.S.3d 631 [4th Dept. 2016], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 299, 84 N.E.3d 971 [2017] ).
We also reject defendant's contention that he was denied effective assistance of counsel. Defendant's contention that defense counsel was ineffective during the argument on defendant's motion seeking the production of the complainant's psychiatric records, the cross-examination of certain witnesses, and summation constitute a " ‘simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial,’ " and thus does not rise to the level of ineffective assistance ( People v. Biro , 85 A.D.3d 1570, 1571, 925 N.Y.S.2d 285 [4th Dept. 2011] ; see People v. Powell , 81 A.D.3d 1307, 1307, 916 N.Y.S.2d 385 [4th Dept. 2011], lv denied 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011] ; People v. Adams , 59 A.D.3d 928, 929, 872 N.Y.S.2d 616 [4th Dept. 2009], lv denied 12 N.Y.3d 813, 881 N.Y.S.2d 21, 908 N.E.2d 929 [2009] ). Nor was defendant denied effective assistance by defense counsel's failure to call a witness to rebut the People's expert witness (see People v. Nicholson , 118 A.D.3d 1423, 1425, 988 N.Y.S.2d 765 [4th Dept. 2014], affd 26 N.Y.3d 813, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ; People v. Washington , 122 A.D.3d 1406, 1406–1407, 997 N.Y.S.2d 194 [4th Dept. 2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015] ).
We likewise reject defendant's contention that defense counsel was ineffective for failing to object to testimony that defendant was previously incarcerated. Such testimony was admissible in evidence inasmuch as it was relevant to a "material issue, other than the defendant's criminal propensity" and its "probative value [outweighed] its potential for undue prejudice" ( People v. Cass , 18 N.Y.3d 553, 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ). Thus, defense counsel was not ineffective for failing to object to that testimony because there can be no denial of effective assistance of counsel arising from counsel's failure to raise an objection or argument that had little or no chance of success (see generally People v. Loomis , 126 A.D.3d 1394, 1394, 4 N.Y.S.3d 459 [4th Dept. 2015] ). Similarly, and contrary to defendant's contention, a nurse's testimony that the complainant disclosed defendant's conduct to her was admissible in evidence (see People v. Spicola , 16 N.Y.3d 441, 451, 922 N.Y.S.2d 846, 947 N.E.2d 620 [2011], cert denied 565 U.S. 942, 132 S.Ct. 400, 181 L.Ed.2d 257 [2011] ), and thus counsel was not ineffective for failing to raise an objection to the nurse's testimony (see generally Loomis , 126 A.D.3d at 1394, 4 N.Y.S.3d 459 ). Assuming, arguendo, that the testimony of the complainant's friend that complainant first disclosed defendant's conduct about eight months after the final alleged incident could not be admitted in evidence under the "prompt outcry" exception to the rule against hearsay (cf. People v. Caban , 126 A.D.3d 808, 808–809, 6 N.Y.S.3d 73 [2d Dept. 2015], lv denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216 [2016] ), we conclude that defense counsel's failure to object to that testimony did not constitute ineffective assistance inasmuch as the testimony may have been properly admitted for the purpose of completing the narrative and explaining the investigation (see People v. Gross , 26 N.Y.3d 689, 694–695, 27 N.Y.S.3d 459, 47 N.E.3d 738 [2016] ; People v. Ludwig , 24 N.Y.3d 221, 231, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014] ). Additionally, allowing such testimony could have been part of a trial strategy of attempting to undermine the complainant's credibility by establishing that the complainant did not make a disclosure contemporaneous with the alleged abuse (see generally People v. Anderson , 159 A.D.3d 1592, 1594, 72 N.Y.S.3d 741 [4th Dept. 2018], lv denied 31 N.Y.3d 1077, 79 N.Y.S.3d 99, 103 N.E.3d 1246 [2018], reconsideration denied 32 N.Y.3d 934, 109 N.E.3d 1161 [2018] ; Biro , 85 A.D.3d at 1571, 925 N.Y.S.2d 285 ). Defendant's further contention that he was denied effective assistance of counsel based on defense counsel's alleged lack of trial preparedness, and his contention that defense counsel failed to bring to the court's attention that a juror was allegedly sleeping during the course of the trial, concern matters outside the record and must therefore be raised by way of a motion pursuant to CPL article 440 (see generally Nicholson , 118 A.D.3d at 1425, 988 N.Y.S.2d 765 ; People v. Moore , 41 A.D.3d 1149, 1150, 837 N.Y.S.2d 480 [4th Dept. 2007], lv denied 9 N.Y.3d 879, 842 N.Y.S.2d 791, 874 N.E.2d 758 [2007], reconsideration denied 9 N.Y.3d 992, 848 N.Y.S.2d 609, 878 N.E.2d 1025 [2007] ).
We reject defendant's contention that, because the conduct alleged in counts two, three, and four of the indictment occurred during the same incident, the court erred in imposing consecutive sentences on those counts. Where, as here, " ‘the crimes are committed through separate and distinct acts, even though part of a single transaction, consecutive sentences are possible regardless of whether the statutory elements of the offenses overlap’ " ( People v. Jackson , 101 A.D.3d 1685, 1685, 956 N.Y.S.2d 383 [4th Dept. 2012], lv denied 21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 [2013] ; see People v. Lucie , 49 A.D.3d 1253, 1255, 853 N.Y.S.2d 761 [4th Dept. 2008], lv. denied 10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409 [2008] ; People v. Gaffney , 30 A.D.3d 1096, 1097, 816 N.Y.S.2d 653 [4th Dept. 2006], lv denied 7 N.Y.3d 789, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006] ). Finally, the sentence is not unduly harsh or severe.