Opinion
184 KA 15–01848
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Stanley LOSTUMBO, Defendant–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, WINSLOW, AND BANNISTER, 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 nonjury trial of sexual abuse in the first degree ( Penal Law § 130.65[1] ), unlawful imprisonment in the second degree (§ 135.05), intimidating a victim or witness in the third degree (§ 215.15[1] ), and two counts of criminal contempt in the second degree (§ 215.50[3] ). We affirm.
We reject defendant's contention that Supreme Court erred in denying his motion to dismiss the indictment on the ground that the People did not provide him with reasonable notice of the grand jury proceedings pursuant to CPL 190.50(5)(a) (see generally CPL 190.50[5][c] ). " CPL 190.50(5)(a) does not mandate a specific time period for notice; rather, ‘reasonable time’ must be accorded to allow a defendant an opportunity to consult with [defense] counsel and decide whether to testify before a [g]rand [j]ury" ( People v. Sawyer, 96 N.Y.2d 815, 816, 727 N.Y.S.2d 381, 751 N.E.2d 460 [2001], rearg. denied 96 N.Y.2d 928, 733 N.Y.S.2d 363, 759 N.E.2d 361 [2001] ; see People v. Gelling, 163 A.D.3d 1489, 1491, 82 N.Y.S.3d 679 [4th Dept. 2018], amended on rearg on other grounds 164 A.D.3d 1673, 82 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1003, 86 N.Y.S.3d 762, 111 N.E.3d 1118 [2018] ). Here, the record establishes that the People orally gave defendant and his attorney approximately five days' notice that the matter would be presented to the grand jury, which constituted reasonable notice under these circumstances (see People v. Ballard, 13 A.D.3d 670, 671, 785 N.Y.S.2d 608 [3d Dept. 2004], lv denied 4 N.Y.3d 796, 795 N.Y.S.2d 171, 828 N.E.2d 87 [2005] ; People v. Pugh, 207 A.D.2d 503, 503, 615 N.Y.S.2d 912 [2d Dept. 1994] ). Additionally, the written notice provided by the People to defense counsel approximately 1½ days prior to the grand jury proceedings also provided defendant with a reasonable amount of time to consult with defense counsel and decide whether to testify at those proceedings (see Sawyer, 96 N.Y.2d at 816–817, 727 N.Y.S.2d 381, 751 N.E.2d 460 ; Gelling, 163 A.D.3d at 1491, 82 N.Y.S.3d 679 ).
Defendant's contention that the evidence is legally insufficient to support his conviction of sexual abuse in the first degree, unlawful imprisonment in the second degree, and intimidating a victim or witness in the third degree is unpreserved because he did not renew his motion for a trial order of dismissal 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] ; 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] ). We further conclude that, viewing the evidence in light of the elements of those crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), the verdict convicting him of those crimes 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. Nicholas, 130 A.D.3d 1314, 1315, 14 N.Y.S.3d 214 [3d Dept. 2015] ). We reject defendant's contention that the victim's trial testimony was incredible as a matter of law due to her past drug use and failure to remember the specific date of one of the alleged incidents (see People v. Saxe, 174 A.D.3d 958, 959–960, 105 N.Y.S.3d 590 [3d Dept. 2019] ; People v. Edwards, 159 A.D.3d 1425, 1426, 73 N.Y.S.3d 323 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ; People v. Barnes, 158 A.D.3d 1072, 1072, 70 N.Y.S.3d 679 [4th Dept. 2018], lv denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018] ). Her testimony merely "presented issues of credibility for the factfinder to resolve" ( People v. Williams, 179 A.D.3d 1502, 1503, 118 N.Y.S.3d 847 [4th Dept. 2020] ), and we see no reason to disturb the court's credibility determinations here.
Defendant's contention that the court rendered its verdict based on improper legal criteria is unpreserved because he did not object to the court's alleged error or raise that contention in his CPL 330.30 motion (see CPL 470.05[2] ; People v. Bridenbaker, 266 A.D.2d 875, 875, 698 N.Y.S.2d 201 [4th Dept. 1999], lv denied 94 N.Y.2d 917, 708 N.Y.S.2d 356, 729 N.E.2d 1155 [2000] ). Defendant's contention that he was deprived of a fair trial by instances of prosecutorial misconduct is also unpreserved because defendant did not object to any of those alleged instances at trial (see People v. Simmons, 133 A.D.3d 1227, 1228, 18 N.Y.S.3d 808 [4th Dept. 2015] ; People v. Easley, 124 A.D.3d 1284, 1285, 1 N.Y.S.3d 640 [4th Dept. 2015], lv denied 25 N.Y.3d 1200, 16 N.Y.S.3d 523, 37 N.E.3d 1166 [2015] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
We reject defendant's further contention that he was deprived of effective assistance of counsel based on several acts or omissions on the part of defense counsel throughout the underlying proceedings. With respect to defendant's claim that defense counsel was ineffective for purportedly failing to facilitate defendant's testimony before the grand jury, defendant did not establish that he was prejudiced by that purported failure or that the outcome would have been different if he had testified (see People v. Robinson, 151 A.D.3d 1701, 1701, 53 N.Y.S.3d 858 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ). To that end, we note that defendant did testify at trial and was nonetheless found guilty (see People v. Hogan, 26 N.Y.3d 779, 787, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] ).
Additionally, defense counsel was not ineffective in failing to request a mistrial based on the admission of certain prejudicial phone calls between defendant and the victim. At a bench trial, the "court is presumed capable of disregarding the prejudicial aspect of the evidence" admitted therein ( People v. Tong Khuu, 293 A.D.2d 424, 425, 740 N.Y.S.2d 860 [1st Dept. 2002], lv denied 98 N.Y.2d 714, 749 N.Y.S.2d 11, 778 N.E.2d 562 [2002] ), and here the court specifically disregarded the prejudicial parts of the calls and chastised the People for playing those parts of the calls. Moreover, defense counsel's failure to move for a mistrial based on admission of that evidence did not render him ineffective because such a motion would have had " ‘little or no chance of success’ " ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see generally People v. Alexander, 109 A.D.3d 1083, 1085, 972 N.Y.S.2d 124 [4th Dept. 2013] ). Defense counsel was also not ineffective in failing to object to alleged hearsay testimony of the victim because any error caused by its introduction—which the court is presumed to have disregarded—was harmless (see People v. Pabon, 126 A.D.3d 1447, 1448, 7 N.Y.S.3d 743 [4th Dept. 2015], affd 28 N.Y.3d 147, 42 N.Y.S.3d 659, 65 N.E.3d 688 [2016] ).
Defendant further contends that defense counsel was ineffective in failing to obtain deleted text messages between defendant and the victim. We reject that contention because the text messages were of minimal "exculpatory value" ( People v. Mitchell, 34 A.D.3d 358, 359, 828 N.Y.S.2d 1 [1st Dept. 2006], lv denied 8 N.Y.3d 988, 838 N.Y.S.2d 491, 869 N.E.2d 667 [2007] ). Moreover, to the extent that those messages could have been used during cross-examination to impeach the victim regarding her potential motives to fabricate accusations against defendant, defense counsel was able to elicit information concerning those motives even without the text messages. Therefore, defendant was not prejudiced by defense counsel's failure to obtain those messages at trial (see People v. Castleberry, 265 A.D.2d 921, 921–922, 697 N.Y.S.2d 215 [4th Dept. 1999], lv denied 94 N.Y.2d 902, 707 N.Y.S.2d 386, 728 N.E.2d 985 [2000] ).
With respect to defendant's final claim concerning ineffective assistance of counsel, we conclude that he was not denied effective assistance due to defense counsel's failure to preserve defendant's challenge to the legal sufficiency of the evidence inasmuch as that "challenge[ ] would not have been meritorious" ( People v. Person, 153 A.D.3d 1561, 1563–1564, 62 N.Y.S.3d 231 [4th Dept. 2017], lv denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018] ).
We further reject defendant's contention that the court erred in denying his CPL 330.30 motion to set aside the verdict on the ground of newly discovered evidence. The relevant evidence—i.e., deleted text messages between defendant and the victim—was not newly discovered evidence inasmuch as defendant knew about those messages prior to trial, and there was no evidence that defendant was unable to produce the messages "at the trial even with due diligence on his part" ( CPL 330.30[3] ; see People v. Brown, 104 A.D.3d 1203, 1204, 960 N.Y.S.2d 588 [4th Dept. 2013], lv denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013] ; cf. People v. Bailey, 144 A.D.3d 1562, 1564, 41 N.Y.S.3d 625 [4th Dept. 2016] ). Moreover, we conclude that the text messages could be used merely to impeach or contradict the victim's testimony, and defendant failed to establish that admission of those messages would have created the probability of a more favorable verdict (see Brown, 104 A.D.3d at 1204, 960 N.Y.S.2d 588 ; see generally CPL 330.30[3] ; People v. Salemi, 309 N.Y. 208, 215–216, 128 N.E.2d 377 [1955], cert denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827 [1956] ).
Finally, we conclude that the sentence is not unduly harsh or severe.