People v. Stahl , 35 N.Y.S.3d 779 ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered:   July 21, 2016                   107292
    107363
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                     MEMORANDUM AND ORDER
    DANIEL D. STAHL,
    Appellant.
    ________________________________
    Calendar Date:   June 2, 2016
    Before:   McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.
    __________
    D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel),
    for appellant.
    G. Scott Walling, Special Prosecutor, Schenectady, for
    respondent.
    __________
    McCarthy, J.P.
    Appeals (1) from a judgment of the County Court of Essex
    County (Meyer, J.), rendered May 17, 2012, convicting defendant
    following a nonjury trial of the crimes of rape in the first
    degree and sexual abuse in the first degree, and (2) by
    permission, from an order of said court, entered December 8,
    2014, which denied defendant's motion pursuant to CPL 440.10 to
    vacate the judgment of conviction, without a hearing.
    In June 2011, defendant was charged in a seven-count
    indictment with, among other things, rape in the first degree and
    sexual abuse in the first degree. The charges stem from the
    allegation that, among other things, defendant drugged the victim
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    with Xanax, without her knowledge, before proceeding to engage in
    sexual acts with her while she was physically helpless. After a
    nonjury trial, County Court found defendant guilty of rape in the
    first degree and sexual abuse in the first degree, acquitted him
    of the remaining charges and thereafter sentenced him to an
    aggregate prison term of 12 years to be followed by 10 years of
    postrelease supervision and ordered him to pay restitution and a
    fine. Defendant subsequently moved pursuant to CPLR article 440
    to vacate the judgment of conviction, claiming, among other
    things, that he was denied the effective assistance of counsel
    due to a failure to seek the Trial Judge's recusal and a failure
    to explain to defendant the details of a personal relationship
    that one of defendant's counsel had with that Judge. County
    Court denied the motion without a hearing. Defendant appeals
    from the judgment and, by permission, from the subsequent order.
    County Court properly denied defendant's motion to dismiss
    the indictment. On June 20, 2011, the People served defendant
    with notice that they were presenting their case to the grand
    jury on June 29, 2011 and specifically advised defendant to
    notify them in writing if he intended to testify before the grand
    jury. Defendant did not notify the People in writing of his
    intention to testify at the June 2011 presentment and, therefore,
    defendant's rights were not violated when the indictment was
    obtained without his testimony (see People v Medeiros, 116 AD3d
    1096, 1097 [2014], lv denied 24 NY3d 1045 [2014]; People v Tole,
    94 AD3d 1334, 1334-1335 [2012], lv denied 19 NY3d 968 [2012];
    People v Caban, 89 AD3d 1321, 1322 [2011]).
    Defendant's arguments that the verdict was based on legally
    insufficient evidence and that it was against the weight of the
    evidence because the victim was not physically helpless and
    defendant did not have sexual intercourse with her are both
    without merit. Considering the evidence, including the victim's
    testimony regarding her alcohol consumption and limited ability
    to remember the night in question, the expert testimony regarding
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    Benzodiazepine1 found in the victim's urine and the expert
    testimony linking defendant through DNA analysis to sperm found
    on the tampon that the victim was wearing and to sperm found on
    an anal swab from the victim, we conclude that the evidence was
    legally sufficient (see People v Kessler, 122 AD3d 1402, 1403
    [2014], lv denied 25 NY3d 990 [2015]) and supported by the weight
    of the credible evidence (see People v Yontz, 116 AD3d 1242, 1243
    [2014], lv denied, 23 NY3d 1026 [2014]; People v Bjork, 105 AD3d
    1258, 1260-1261 [2013], lv denied 21 NY3d 1040[2013], cert denied
    
    134 S. Ct. 1306
    [2014]).
    Next, as the People concede, law enforcement lacked the
    necessary grounds to seize defendant when an officer stopped him
    while he was driving in order to inform him that law enforcement
    wished to speak to him. Nonetheless, that violation did not
    require the suppression of a subsequent statement that defendant
    made to law enforcement. The attenuation doctrine, which
    addresses whether evidence obtained subsequent to such an illegal
    seizure must be suppressed, "requires a court to consider the
    temporal proximity of the [seizure] and the confession, the
    presence of intervening circumstances and, particularly, the
    purpose and flagrancy of the official misconduct" (People v
    Bradford, 15 NY3d 329, 333 [2010] [internal quotation marks and
    citation omitted). Here, after the brief roadside seizure ended,
    defendant voluntarily drove himself to a police station and
    agreed to speak to a law enforcement officer there. Before
    defendant gave a statement, he received Miranda warnings. In
    light of these facts, defendant's statement was attenuated from
    the illegal police conduct and, thus, was not subject to
    suppression (see People v Bradford, 15 NY3d at 333-335; People v
    Buchanan, 136 AD3d 1293, 1294 [2016]).
    In addition, County Court did not err in allowing the
    People to elicit bad act evidence in the form of testimony from
    other people regarding defendant's offer of Xanax to them. The
    testimony was directly relevant to the issue of whether defendant
    1
    The proof further established that Xanax is a
    Benzodiazepine.
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    possessed a controlled substance, which was an element of each of
    the charges against defendant of facilitating a sex offense with
    a controlled substance (see Penal Law § 130.90; see generally
    People v Fuller, 50 AD3d 1171, 1176 [2008], lv denied 11 NY3d 788
    [2008]). Further, we find no abuse of discretion in County
    Court's determination that the probative value of the
    aforementioned evidence outweighed any improper prejudicial
    effect (see People v Dorm, 12 NY3d 16, 19 [2009]).
    Next, defendant's constitutional right to confront
    witnesses was not violated (see US Const 6th Amend). Defendant
    contends that County Court erred in admitting into evidence the
    reports prepared by Laurie Pasqualino, the forensic scientist who
    analyzed the DNA data and linked defendant's DNA to the samples
    from the rape kit, over defendant's objection that she relied
    upon data compiled by lab technicians in the same lab who did not
    testify at trial. We disagree. Pasqualino testified that she
    analyzed raw data compiled by the nontestifying lab technicians
    and that she did not rely on the opinions or interpretation of
    anyone else in forming her scientific conclusions linking
    defendant's DNA profile to the victim's rape kit, which
    conclusions were contained in the reports that she authored (see
    People v Brown, 13 NY3d 332, 336-337, 339-340 [2009]; see also
    People v John, 27 NY3d 294, 301-302 [2016]). Pasqualino
    testified and was subject to cross-examination, satisfying the
    requirement that "analysts who write reports that the prosecution
    introduces [into evidence at trial] must be made available for
    confrontation" (Bullcoming v New Mexico, 
    564 U.S. 647
    , 661 [2011];
    accord People v Raucci, 109 AD3d 109, 121-122 [2013], lv denied
    22 NY3d 1158 [2014]; compare People v John, 27 NY3d at 301).
    While the right of the accused to confront witnesses
    precludes "surrogate testimony," i.e., the admission of one
    person's testimonial statements through the in-court testimony of
    a second person, no such surrogate testimony was introduced at
    this trial and no Crawford violation occurred (see Bullcoming v
    New 
    Mexico, 564 U.S. at 651-652
    , 657-658; Crawford v Washington,
    
    541 U.S. 36
    , 42, 68-69 [2004]; People v Raucci, 109 AD3d at
    121-122; compare People v John, 27 NY3d at 297 [the "defendant's
    Sixth Amendment right to confront the witnesses against him was
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    violated when the People introduced DNA reports into evidence,
    asserting that [the] defendant's DNA profile was found on the gun
    that was the subject of the charged possessory weapon offense,
    without producing a single witness who conducted, witnessed or
    supervised the laboratory's generation of the DNA profile from
    the gun or [the] defendant's exemplar"]). Pasqualino testified
    that the lab technicians, who are under her supervision in the
    lab, extract, quantify and amplify the DNA in the lab, and
    another analyst then runs the genetic analyzer that creates the
    raw data upon which she relies. She further explained that, in
    this case, she then analyzed and interpreted that raw data and
    rendered her scientific opinions and conclusions linking the DNA
    evidence to defendant (compare People v John, 27 NY3d at 313
    ["nothing in this record supports the conclusion that the
    analysts involved in the preliminary testing stages,
    specifically, the extraction, quanti[fic]ation or amplification
    stages, are necessary witnesses"]).
    There is no evidence in the record that any lab technician
    or analyst who participated in the preliminary processing and
    testing of this DNA evidence engaged in any data editing,
    analysis, comparisons or interpretations of the evidence or
    rendered any opinions regarding whether the data collected from
    the rape kit matched defendant's DNA profile; likewise, there is
    no proof that Pasqualino relied upon any such opinions or
    conclusions drawn by others (see People v Rawlins, 10 NY3d 136,
    144-146, 158-160 [2008]). Further, the technicians' compilation
    of objective data was not accusatory and did not, without
    Pasqualino's expert analysis and testimony, link defendant to
    these crimes (see 
    id. at 156,
    159). Under these circumstances,
    defendant's right of confrontation was not violated when
    Pasqualino relied upon and made reference to data collected by
    nontestifying lab technicians (see People v Raucci, 109 AD3d at
    121-122).
    Defendant's ineffective assistance of counsel claim made on
    his direct appeal is also without merit. Defense counsel's
    decision not to object, during a bench trial, to various
    characterizations of the evidence by the People during summation
    did not deprive defendant of meaningful representation (see
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    People v Tonge, 93 NY2d 838, 840 [1999]). Further, County Court
    did not err in denying without a hearing defendant's CPL 440.10
    motion, which alleged, among other things, ineffective assistance
    of counsel based on non-record facts. To establish entitlement
    to a hearing, a defendant must demonstrate that "non-record facts
    set forth in [a] CPL article 440 motion . . . are material and
    [that], if established, they would entitle him [or her] to
    relief" (People v Mosley, 121 AD3d 1169, 1174 [2014], lv denied
    24 NY3d 1086 [2014]; see People v Satterfield, 66 NY2d 796, 799
    [1985]; CPL 440.30 [5]). "[I]t is incumbent on [a] defendant
    [seeking to establish that he or she received ineffective
    assistance of counsel] to demonstrate the absence of strategic or
    other legitimate explanations for counsel's" alleged shortcomings
    (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Thiel,
    134 AD3d 1237, 1240 [2015]).
    Defendant contends that, based on his perception that the
    Trial Judge came to dislike one of his counsel (hereinafter local
    counsel), counsel was ineffective for failing to move for the
    recusal of the Judge or to move to withdraw his waiver of a jury
    trial. Even if we were to conclude that defendant's proof in
    support of the motion as to the Judge's opinion rose above mere
    speculation and gave rise to plausible grounds upon which to make
    a motion for recusal or a motion to withdraw defendant's waiver
    of his right to a jury trial, the proof does not establish that
    it was an objectively unreasonable strategy to proceed with the
    bench trial. Defendant submitted no proof tending to suggest
    that defendant would have fared better by proceeding either with
    a bench trial before a different judge or with a jury trial
    presided over by this Judge.2 Accordingly, defendant's proof
    failed to establish that it was an objectively unreasonable
    strategy to proceed with the bench trial and, thus, County Court
    properly denied the motion without a hearing (see People v
    Demetsenare, 14 AD3d 792, 793-795 [2005]; People v Shamblee, 222
    AD2d 834, 835 [1995], lv denied 88 NY2d 994 [1996]).
    2
    Notably, the record establishes that local counsel
    believed, at the time that defendant waived a jury trial, that a
    jury would be particularly hostile to defendant.
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    We reach a similar conclusion with regard to defendant's
    contention that counsel ought to have presented the testimony of
    an expert witness on toxicology. Although this expert would have
    testified to certain potentially exculpatory conclusions, defense
    counsel's assessment that such testimony would "backfire[]" was
    not objectively unreasonable. According to the expert, he
    concluded that, at the relevant time, the victim had a
    "diminished . . . ability to appreciate what interactions she was
    involved in." Given that potentially inculpatory conclusion,
    defendant failed to establish that it was not a legitimate
    strategy for defense counsel to forgo calling that expert witness
    to testify (see generally People v Venkatesan, 295 AD2d 635, 637-
    638 [2002], lv denied 99 NY2d 565 [2002], cert denied 
    549 U.S. 854
    [2006]). Finally, defendant's waiver of his right to a jury
    trial is no less knowing, voluntary or intelligent even if
    counsel failed to disclose the particularities of the Judge's
    alleged preference for local counsel prior to the waiver's
    execution. Likewise, the waiver is not invalid based on the fact
    that defendant was unable to predict that, after he waived his
    right to a jury trial, the Judge would, in defendant's opinion,
    eventually develop a less favorable view of local counsel. We
    have considered defendant's remaining contentions and have
    concluded that they are also without merit.
    Garry, Lynch, Devine and Aarons, JJ., concur.
    ORDERED that the judgment and order are affirmed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 107292, 107363

Citation Numbers: 141 A.D.3d 962, 35 N.Y.S.3d 779, 2016 NY Slip Op 05597, 2016 N.Y. App. Div. LEXIS 5453

Judges: McCarthy, Garry, Lynch, Devine, Aarons

Filed Date: 7/21/2016

Precedential Status: Precedential

Modified Date: 11/1/2024