THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v CORY J. CLARKE, Appellant
Supreme Court, Appellate Division, Third Department, New York
101 A.D.3d 1341 | 975 N.Y.S.2d 194
December 27, 2012
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v CORY J. CLARKE, Appellant. [975 NYS2d 194]—
Garry, J.
Shortly after noon on July 4, 2009, defendant reported that the victim, then just under seven months old, was missing from a Wal-Mart store in thе Town of Thompson, Sullivan County. That evening, the victim was found in a nearby wooded area. Defendant was indicted for various crimes and, following a jury trial, convicted of attempted murder in the second degree, criminal sexual act in the first degree, sexual abuse in the first
Defendant first contends that his convictions for attempted murder in the second degree, sexual abuse in the first degree and assault in the second degree are not supported by lеgally sufficient evidence. As he concedes, this claim was not preserved for appellate review (see People v Gray, 86 NY2d 10, 19-20 [1995]). In view of defendant‘s inconsistent descriptions of his actions on the day in question, the contrast between his accounts and the actual events revealed by surveillance video and witness testimony, his apparent efforts to prevent police from locating the victim, the circumstances of her eventual discovery, her еxtreme youth, the nature of her injuries and the other evidence, we find no reason to exercise our interest of justice jurisdiction to modify any of these convictions (see
Defendant next contends that County Court erred in denying his pretrial motion pursuant to
Defendant further relies upon the denial of his pretrial request for a DNA expert as the basis of his claim that his posttrial motion to vacate the jury verdict should have been granted. In support of the posttrial motion, hе submitted the report of a DNA expert who criticized the People‘s DNA analysis. Assuming without deciding that defendant sufficiently established that this report could not have been submitted before trial with due diligence (see
We reject defendant‘s contention that his counsel inadequately waived his right to be present during sidebar conferences (see generally People v Antommarchi, 80 NY2d 247, 250 [1992]). Prior to jury selection, County Court inquired whether defendant would attend sidebar conferences, and defense counsel advised that he would not. A moment later County Court noted defendant‘s presence in the courtroom. Shortly thereafter, the prosecutor sought to сonfirm that defendant intended to waive his appearance at sidebar conferences, and defense counsel responded to the court‘s further inquiry that he would. Defendant now argues that he was not present when his counsel waived his appearance. However, this record does not demonstrate that he was absent, and we thus find that defendant has not met the burden of coming forward with substantial evidence to defeat the presumptiоn of regularity that attaches to judicial proceedings (see People v Velasquez, 1 NY3d 44, 48 [2003]; People v Keen, 94 NY2d 533, 538-539 [2000]; People v Robinson, 191 AD2d 523, 523 [1993], lv denied 81 NY2d 1018 [1993]; see also People v Williams, 11 AD3d 810, 812 [2004], lv denied 4 NY3d 769 [2005]). We further note that, following the waiver by counsel, defendant was present during two sidebar conferences
Defendant next contends that he was denied his right to a fair trial by the admission of three photographs depicting injuries to the infant victim‘s genital and rectal area, which he claims were highly prejudicial and not probative of any material issue, as the nature of the injuries was not in dispute. This claim is unpreserved (see People v Wright, 38 AD3d 1004, 1006 [2007], lv denied 9 NY3d 853 [2007]; People v Sawyer, 23 AD3d 845, 847 [2005], lv denied 6 NY3d 852 [2006]). However, as defendant relies upon this failure as one of the grounds for his claim that he received ineffective assistance of counsel, we note that counsel may have deemed an objection to be unnecessary or futile (see e.g. People v Bonelli, 41 AD3d 972, 973 [2007], lv denied 9 NY3d 921 [2007]). Before the photographs were displayed to the jury, County Court warned that “you are going to see some photographs that are quite a graphic depiction of a very serious situation. It‘s extremely emotionally charged and I know that all of you will have a difficult time viewing this . . . but it is relative [sic] and probative of what happened. Who happened to do it is another issue, but it is admissible for purposes of what hаppened.”4 Counsel could reasonably have concluded that no objection was likely to succeed in the face of this warning, which indicated County Court‘s opinion that the photographs were relevant, and instructed the jury as to the limited purpose for which they were admitted (see People v Francis, 83 AD3d 1119, 1122 [2011], lv denied 17 NY3d 806 [2011]). In our view, the pictures accurately depicted the victim‘s injuries, corroborated the observations of the nurse who treated her upon her arrival аt the hospital, and were disturbing because of the victim‘s infancy and the nature of her injuries rather than because they were presented in an unnecessarily
Even if defendant had preserved his next contention that the People were improperly permitted to elicit testimony regarding his silence and demeanor while speaking with police (see
Defendant‘s claim that he was deprived of a fair trial by various remarks made by the prosecutor during his opening statement and summation is unpreserved for appellate review, as his counsel did not object to the comments in question (see People v Leonard, 83 AD3d 1113, 1117 [2011], affd 19 NY3d 323 [2012]). We are unpersuaded by defendant‘s claim that this failure deprived him of meaningful representation. Ineffective assistance of counsel does not arise “from counsel‘s failure to make a motion or argument that has little or no chance of success” (People v Bahr, 96 AD3d 1165, 1167 [2012], lv denied 19 NY3d 1024 [2012], quoting People v Caban, 5 NY3d 143, 152 [2005]). Here, most of the challenged remarks were fair comments on the evidence; some of the statements that defendant now objects to merely highlighted the undisputed evidence that the victim was left alone in a deserted, trash-strewn area, and others were made in the course of arguing that defendant‘s statements to police were inconsistent with one another and with the evi-dence.
Defendant‘s remaining allegations of ineffective assistance of counsel are unpersuasive. Defendant has not identified any materials that his counsel failed to obtain in pretrial discovery, and we notе that the People employed an open file discovery policy (see People v Moyer, 75 AD3d 1004, 1007 [2010]). The record reveals that defense counsel actively participated in Huntley and Wade hearings, and made posthearing submissions that County Court chаracterized as “very good.” Defendant has not shown that other pretrial motions or hearings were necessary or had any likelihood of success (see People v Workman, 277 AD2d 1029, 1031-1032 [2000], lv denied 96 NY2d 764 [2001]; compare People v Kirk, 290 AD2d 805, 807-808 [2002]). Counsel also applied—albeit unsuccessfully—for funds to retain a DNA expert. Viewing the record as a whole, counsel pursued a consistent, cogent theory of defense, made successful objections, engaged in thorough cross-examination of the People‘s witnesses, and otherwise provided defendant with “meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]; see People v Jones, 101 AD3d 1241, 1243 [2012], lv denied 21 NY3d 944 [2013]).
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.