Opinion
2016–377 OR CR
01-18-2018
The PEOPLE of the State of New York, Respondent, v. Raul RESTO, Appellant.
Jillian S. Harrington, Esq., for appellant. Orange County District Attorney (Robert H. Middlemiss, Esq.), for respondent.
Jillian S. Harrington, Esq., for appellant.
Orange County District Attorney (Robert H. Middlemiss, Esq.), for respondent.
PRESENT: : ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
ORDERED that the judgment of conviction is affirmed.
The People charged defendant, in a felony complaint, with grand larceny in the fourth degree ( Penal Law § 155.30 [5 ] ), alleging that, in the course of an altercation with the complainant, defendant placed her in a headlock and stole her cell phone. The charge was subsequently reduced to petit larceny, a misdemeanor ( Penal Law § 155.25 ). At a nonjury trial, the complainant testified to the aforementioned facts and that, after the incident, a friend had gone to defendant's home, asked for the phone's return, and repeatedly dialed the complainant's phone number, which had elicited telephone answering sounds from defendant's pocket. The complainant further testified that defendant had stated to the friend that he would return the phone, but, according to the complainant, defendant never did. In the course of his own testimony, defendant admitted to the altercation and that the complainant's friend had contacted him with respect to the phone, but denied stealing it. The complainant and defendant were the only witnesses. At the conclusion of the People's case, defense counsel moved to dismiss, arguing that the complainant's testimony was insufficiently credible to support a conviction. The court denied the motion. After presenting defendant's testimony, counsel did not renew the motion. On summation, counsel offered several grounds as to why defendant's testimony should be credited over that of the complainant. In its decision after trial, the court, making no reference to the complainant's testimony with respect to what her friend had reported to her of the encounter with defendant, and noting that the case presented simply an issue of competing credibilities, convicted defendant of petit larceny.
On appeal, defendant argues that the evidence is legally insufficient to support the conviction, that the conviction is against the weight of the evidence, and that he was denied the effective assistance of counsel, principally because trial counsel failed to object to the complainant's hearsay testimony with respect to statements by the non-testifying friend, and failed to adequately investigate the case and to prepare a defense.
Defendant's claim that the evidence was legally insufficient to support a conviction of petit larceny is not preserved for appellate review. Defendant's dismissal motion at the conclusion of the People's case was limited to references to whether the complainant's testimony was generally "accurate" or "correct," and thereby lacked the requisite specificity to preserve a claim of evidentiary insufficiency (see CPL 470.05 [2 ]; People v. Hawkins , 11 NY3d 484, 492 [2008] ; People v. Gray , 86 NY2d 10, 19 [1995] ). Moreover, the defense failed to renew the dismissal motion after presenting its case (see People v. Kolupa , 13 NY3d 786, 787 [2009] ; People v. Hines , 97 NY2d 56, 61 [2001] ; People v. Acevedo , 136 AD3d 1386, 1386 [2016] ; People v. Ganz , 50 Misc 3d 79, 83 [App Term, 2d Dept, 9th & 10th Jud Dists 2015] ). In any event, the claim is without merit.
Evidence is legally sufficient where " ‘any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People’ " ( People v. Dubarry , 25 NY3d 161, 178 [2015], quoting People v. Hines , 97 NY2d at 62 ; see also People v. Contes , 60 NY2d 620, 621 [1983] ). Legally sufficient evidence is "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" ( CPL 70.10 ). A petit larceny is committed when someone "steals property" ( Penal Law § 155.25 ), and a person "steals property ... when, with intent to deprive another of property or to appropriate the same to himself ... he wrongfully takes, obtains or withholds such property from an owner thereof" ( Penal Law § 155.05 [1 ] ). "The intent to ‘deprive’ or ‘appropriate’ ... is satisfied by the exertion of ‘permanent or virtually permanent control over the property taken’ " ( People v. Jensen , 86 NY2d 248, 252 [1995], quoting People v. Jennings , 69 NY2d 103, 118 [1986] ). Indulging in all reasonable inferences in the People's favor (see People v. Ford , 66 NY2d 428, 437 [1985] ), we find that the evidence established that, in the course of an argument, defendant placed the complainant in a headlock and withdrew a cell phone from her coat pocket, and that defendant left the complainant's home with the phone and never returned it. The complainant's testimony that a friend subsequently attempted to recover the phone at defendant's place of residence, that the friend repeatedly called the complainant's number and repeatedly heard an answering sound from a phone in defendant's pocket, and that defendant assured the friend that the phone would be returned, was corroborated to the extent that defendant admitted that the friend had called asking about a cell phone.
As defendant does not dispute that the testimony of a single witness can be sufficient to support a conviction (see e.g. People v. Vecchio , 31 AD3d 674 [2006] ; People v. Arroyo , 54 NY2d 567, 578 [1982] ["while a single, though unimpeached, witness need not be believed, so too is the testimony of a single witness sufficient to support a conviction"] ), the elements of petit larceny were established by the complainant's testimony that defendant intentionally deprived her, the rightful owner, of a cell phone and retained control of the phone in sufficiently "permanent" a manner to evidence a theft.
In conducting an independent review of the weight of the evidence (see CPL 470.15 [5 ]; People v. Danielson , 9 NY3d 342, 348 [2007] ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v. Lane , 7 NY3d 888, 890 [2006] ; People v. Bleakley , 69 NY2d 490, 495 [1987] ). We find that the City Court gave the evidence the weight it should be accorded.
"Under the New York standard for ineffective assistance, courts ‘must examine defense counsel's entire representation of defendant’ ( People v. Oathout , 21 NY3d 127, 132 [2013] ) and consider whether trial counsel's performance constituted egregious and prejudicial error such that the defendant did not receive a fair trial (see id. at 131 ; People v. Benevento , 91 NY2d 708, 714 [1998] ). A ‘claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole,’ and must be objectively evaluated ‘to determine whether it was consistent with strategic decisions’ of a reasonably competent attorney ( People v. Benevento , 91 NY2d at 712–713 ; see People v. Oathout , 21 NY3d at 132 ; People v. Henriquez , 3 NY3d 210, 225 [2004] ). A defendant has been afforded effective assistance of counsel when the evidence, the law, and the circumstances of a particular case, viewed in totality and at the time of the representation, indicate that the attorney provided the defendant with meaningful representation (see People v. Wragg , 26 NY3d 403, 409 [2015] ; People v. Ambers , 26 NY3d 313, 317 [2015] ; People v. Benevento , 91 NY2d at 712 ; People v. Baldi , 54 NY2d 137, 147 [1981] )" ( People v. Lawrence , 57 Misc 3d 129[A], 2017 NY Slip Op 51182[U], *4 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ).
Here, trial counsel's conduct of the defense represents "a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful" ( People v. Benevento , 91 NY2d at 713 ). Defense counsel exhibited familiarity with the nature of the accusation and the alleged factual basis of the charge. Counsel's cross-examination of the complainant, consistent with his opening statement, addressed issues that implicated her credibility, including her initial, mistaken report in her 911 call that defendant had stolen a wallet, and her long and continuing personal relationship with defendant that produced a child in common. Further, it cannot be said that presenting defendant as a witness was a fatally flawed strategy, as the only available defense appeared to be to undermine the complainant's credibility via cross-examination and defendant's denial of guilt. Defense counsel's summation continued the theme that the complainant's testimony cannot be reliably credited. While defendant claims that his counsel failed to adequately prepare, defendant offers no example of a witness who could have offered evidence that would have undermined the People's case, much less exculpated defendant.
With respect to defense counsel's failure to object to the hearsay aspects of the complainant's testimony, to the extent that it was genuinely hearsay and prejudicial, the failure to object does not necessarily establish an inference of ineffectiveness. As noted in People v. Wells (21 NY3d 716, 718 [2013] ), "[t]he harmless error rule was formulated to review trial verdicts ... [and] requires an appellate court to assess the quantum and nature of the People's proof of guilt independent of erroneously admitted evidence and the causal effect, if any, that the introduction of that evidence had on the factfinders's verdict" (internal quotation marks and citation omitted). First, in a nonjury trial, "absent a showing of prejudice, the trial court is presumed, by virtue of ... learning and experience, to have considered only the competent evidence ... in reaching [its] determination" ( People v. Torres , 1 AD3d 621, 621 [2003] [internal quotation marks omitted]; see also People v. Aviles , 119 AD3d 871, 872 [2014] ; People v. Kozlow , 46 AD3d 913, 915 [2007] ; People v. Angel R.R. , 52 Misc 3d 84, 88 [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ) " ‘despite awareness of facts which cannot properly be relied upon in making the decision’ " ( People v. Brito , 53 Misc 3d 130[A], 2016 NY Slip Op 51371[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016], quoting People v. Maduro , 27 Misc 3d 127[A], 2010 NY Slip Op 50577[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010] ). In its decision after trial, the City Court made no reference to the disputed testimony (cf. People v. Memon , 145 AD3d 1492, 1493 [2016] ), explicitly stating that its determination was based on a review of the relative credibilities of the witnesses, noting only, with respect to the complainant's testimony, that defendant had admitted to certain of the salient, admissible facts to which the complainant testified. Consequently, the admission of the inadmissible hearsay may be deemed harmless error (see People v. Barnes , 137 AD3d 1571, 1572 [2016] ).
Thus, "[i]nsofar as the claim is reviewable on the record before us" ( People v. Drago , 50 AD3d 920, 920 [2008] ), viewed in its entirety ( People v. Oathout , 21 NY3d at 132 ) and objectively evaluated, we find that defense counsel's representation "was consistent with strategic decisions" of a reasonably competent attorney ( People v. Benevento , 91 NY2d at 712–713 ). To the extent the ineffective assistance claim involves matters appearing on the record and others off the record, it is a "mixed claim[ ]" ( People v. Evans , 16 NY3d 571, 575 n 2 [2011] ), and because such review involves all of the circumstances of a representation, collectively considered, it remains defendant's obligation to present the claims in the proper forum (see CPL 440.10 ; e.g. People v. Caine , 149 AD3d 769, 769–770 [2017] ; People v. Maxwell , 89 AD3d 1108, 1109 [2011] ). Finally, "[b]ecause our state standard [for the effective representation of counsel] offers greater protection than the federal test" ( People v. Caban , 5 NY3d 143, 156 [2005] ; see also People v. Ozuna , 7 NY3d 913, 915 [2006] ), if the state standard is satisfied we "necessarily reject defendant's federal constitutional challenge" ( People v. Caban , 5 NY3d at 156 ; see e.g. People v. Ramos , 48 AD3d 984, 987–988 [2008] [where "the higher state standard (is) satisfied, (the argument that defendant was deprived of the effective assistance of counsel under the federal standard) necessarily falls"] ).
Accordingly, the judgment of conviction is affirmed.
MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.