Opinion
93 KA 17-00042
07-16-2021
The PEOPLE of the State of New York, Respondent, v. Tony PERKINS, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, 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 rape in the third degree ( Penal Law § 130.25 [2] ) and endangering the welfare of a child (§ 260.10 [1]). We affirm.
Contrary to defendant's contention, County Court properly denied his motion to preclude identification testimony without holding either a Wade or a Rodriguez hearing. Initially, we conclude that the court did not err in refusing to hold a Wade hearing. "[A] court may summarily deny a Wade hearing (and hence no CPL 710.30 notice would be required) where the court concludes that, as a matter of law, the identifying, civilian witness knew the ‘defendant so well that no amount of police suggestiveness could possibly taint the identification’ " ( People v. Boyer , 6 N.Y.3d 427, 432, 813 N.Y.S.2d 31, 846 N.E.2d 461 [2006] ). Here, the court did not err in determining that the witness in question, i.e., the complainant, who had dated defendant for approximately two months during which time she turned 15 years old, was so familiar with defendant that there was "little or no risk that police suggestion could lead to a misidentification" ( People v. Carter , 57 A.D.3d 1017, 1017, 868 N.Y.S.2d 378 [3d Dept. 2008], lv denied 12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092 [2009] [internal quotation marks omitted]; see People v. Rodriguez , 79 N.Y.2d 445, 449, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ; People v. Hines , 132 A.D.3d 1385, 1386-1387, 17 N.Y.S.3d 551 [4th Dept. 2015], lv denied 26 N.Y.3d 1109, 26 N.Y.S.3d 768, 47 N.E.3d 98 [2016] ).
With respect to whether the court should have held a Rodriguez hearing, we note that, in general, a trial court must hold an evidentiary hearing before making the determination that defendant is so well known to a witness that " ‘suggestiveness’ is not a concern" ( People v. Gissendanner , 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ; see Rodriguez , 79 N.Y.2d at 453, 583 N.Y.S.2d 814, 593 N.E.2d 268 ). Here, however, testimony from the first trial, which ended in a mistrial, established that there was "a mutual relationship" between defendant and the witness ( Rodriguez , 79 N.Y.2d at 453, 583 N.Y.S.2d 814, 593 N.E.2d 268 ). Indeed, such testimony established that the two had engaged in sexual relations on several occasions, that the witness had introduced defendant to her mother, and that a police officer had observed the witness sitting and talking with defendant on a prior occasion. As a result, the court was not required to hold a Rodriguez hearing before making the determination that no Wade hearing was warranted (see id. ; People v. Carmona , 185 A.D.3d 600, 602, 126 N.Y.S.3d 705 [2d Dept. 2020] ; see also People v. Bennett , 292 A.D.2d 626, 626, 739 N.Y.S.2d 612 [2d Dept. 2002], lv denied 98 N.Y.2d 729, 749 N.Y.S.2d 479, 779 N.E.2d 190 [2002] ).
We reject defendant's further contention that he was deprived of effective assistance of counsel because a nonlawyer participated in his trial. Where, as here, there was active participation by a licensed attorney throughout a defendant's trial, "a conviction should not be reversed in the absence of a showing of prejudice" arising from the participation of a nonlawyer ( People v. Jacobs , 6 N.Y.3d 188, 190, 811 N.Y.S.2d 604, 844 N.E.2d 1126 [2005] ). Inasmuch as defendant has not established any prejudice from the minor participation by the nonlawyer—a law school graduate who had passed the bar examination, was awaiting admission to the bar, and was working on the case pursuant to a limited practice order issued by this Court—we conclude that the nonlawyer's participation does not warrant reversal (see generally id. at 190-191, 811 N.Y.S.2d 604, 844 N.E.2d 1126 ).
Defendant next contends that certain evidence was admitted in violation of People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901), i.e., testimony by the complainant that she and defendant used crack cocaine together, and testimony by a police investigator regarding defendant's statement that he had engaged in sex with numerous women. Contrary to defendant's contention, the testimony regarding drug use was not Molineux evidence, and thus its admission does not violate that exclusionary rule, "inasmuch as the evidence at issue related directly to a crime charged herein, i.e.," endangering the welfare of a child ( People v. Figueroa , 15 A.D.3d 914, 915, 788 N.Y.S.2d 772 [4th Dept. 2005] ; see generally People v. Hymes , 174 A.D.3d 1295, 1296, 106 N.Y.S.3d 439 [4th Dept. 2019], affd 34 N.Y.3d 1178, 122 N.Y.S.3d 587, 145 N.E.3d 224 [2020] ; People v. Frumusa , 29 N.Y.3d 364, 370, 57 N.Y.S.3d 103, 79 N.E.3d 495 [2017], rearg denied 29 N.Y.3d 1110, 2017 WL 3877957 [2017] ). In addition, the evidence that defendant told a police investigator that he had engaged in sex with "so many women" was also not Molineux evidence. " Molineux analysis is limited to the introduction of a prior uncharged crime or a prior bad act. It should not be used to evaluate a prior consensual sexual act between adults" ( People v. Brewer , 28 N.Y.3d 271, 276, 44 N.Y.S.3d 339, 66 N.E.3d 1057 [2016] ). 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 reject defendant's contention that the verdict is 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] ). It is well settled that "[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury" ( People v. Witherspoon , 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829 [4th Dept. 2009], lv denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [2010] [internal quotation marks omitted]). Contrary to defendant's contention, the complainant's trial testimony "was not so inconsistent or unbelievable as to render it incredible as a matter of law" ( People v. Black , 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375 [4th Dept. 2007], lv denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661 [2007] ), and we see no basis for disturbing the jury's credibility determinations in this case (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant further contends that the trial evidence rendered count three of the indictment, i.e., the rape count of which he was convicted, duplicitous. Even assuming, arguendo, that defendant's request to the court to charge the jury with respect to the specific date of each offense charged in the indictment was sufficient to preserve for our review his contention (cf. People v. Rivera , 257 A.D.2d 425, 425, 683 N.Y.S.2d 513 [1st Dept. 1999], lv denied 93 N.Y.2d 901, 689 N.Y.S.2d 714, 711 N.E.2d 990 [1999] ), we reject it. Although the complainant described several incidents of sexual contact with defendant, she was "quite specific in describing the ... distinct occasion[ ]" charged in the indictment with respect to count three, and thus "it was not ‘nearly impossible to determine the particular act upon which the jury reached its verdict’ as to [that] count[ ]" ( People v. Tomlinson , 53 A.D.3d 798, 799, 861 N.Y.S.2d 221 [3d Dept. 2008], lv denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ; see People v. Spencer , 119 A.D.3d 1411, 1412-1413, 989 N.Y.S.2d 735 [4th Dept. 2014], lv denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014] ).
Defendant also contends that he was deprived of a fair trial based on several instances of prosecutorial misconduct. Contrary to defendant's contention, we conclude that "the prosecutor [did not] vouch for the credibility of the People's witnesses. Faced with defense counsel's focused attack on their credibility, the prosecutor was clearly entitled to respond by arguing that the witnesses had, in fact, been credible ... An argument by counsel that his [or her] witnesses have testified truthfully is not vouching for their credibility" ( People v. Overlee , 236 A.D.2d 133, 144, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; see People v. Roman , 85 A.D.3d 1630, 1632, 925 N.Y.S.2d 310 [4th Dept. 2011], lv denied 17 N.Y.3d 821, 929 N.Y.S.2d 810, 954 N.E.2d 101 [2011] ). Additionally, after the court sustained defendant's objections to the prosecutor's comments about the complainant's state of mind, defendant failed to request curative instructions or move for a mistrial. Consequently, defendant failed to preserve for our review his contention that he was deprived of a fair trial by those comments (see People v. Logan , 178 A.D.3d 1386, 1388, 116 N.Y.S.3d 835 [4th Dept. 2019], lv denied 35 N.Y.3d 1028, 126 N.Y.S.3d 42, 149 N.E.3d 880 [2020] ; see generally People v. Heide , 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ). In any event, we conclude that all of the prosecutor's challenged comments on summation "were ‘either a fair response to defense counsel's summation or fair comment on the evidence’ " ( 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] ; see People v. Doty , 161 A.D.3d 1511, 1513, 76 N.Y.S.3d 711 [4th Dept. 2018], lv denied 31 N.Y.3d 1147, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018] ; People v. Lewis , 154 A.D.3d 1329, 1331, 63 N.Y.S.3d 156 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ). Furthermore, we reject defendant's contention that he was deprived of a fair trial because the prosecutor twice used the term "the victim" during voir dire. The use of the word victim was "so minimal in the context of the trial as a whole that we perceive no possibility that the presumption of innocence was undermined or that defendant was deprived of a fair trial" ( People v. Horton , 181 A.D.3d 986, 990 n. 1, 119 N.Y.S.3d 296 [3d Dept. 2020], lv denied 35 N.Y.3d 1045, 127 N.Y.S.3d 845, 151 N.E.3d 527 [2020] ).
Finally, the sentence is not unduly harsh or severe.