THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DEAN A. GUAY, Appellant
Supreme Court, Appellate Division, Third Department, New York
898 N.Y.S.2d 353
2010
The victim (born in 1997) disclosed to a school counselor that defendant had sexually molested her. After making an oral confession to police, defendant was indicted on charges of rape in the first degree, sexual abuse in the first degree, and endangering the welfare of a child. He was convicted on all three counts following a jury trial at which the victim testified, and sentenced to concurrent prison terms of 20 years with 10 years of postrelease supervision for rape in the first degree, seven years with five years of postrelease supervision for sexual abuse in the first degree, and one year for endangering the welfare of a child. Defendant now appeals.
Initially, defendant contends that Supreme Court erred in dismissing for cause a prospective juror on the basis of a hearing impairment. A prospective juror whose hearing is impaired may serve if the trial court determines that the juror is “capable of doing what jurors are supposed to do” (People v Guzman, 76 NY2d 1, 5 [1990]; see
Next, defendant contends that he was deprived of a fair trial by prosecutorial misconduct in the form of allegedly improper comments made by the prosecutor during voir dire and summation. During voir dire, Supreme Court sustained objections to two questions that the prosecutor framed in a way that impermissibly interjected her own opinions (see People v Bailey, 58 NY2d 272, 277 [1983]; People v Fairley, 63 AD3d 1288, 1289 [2009], lv denied 13 NY3d 743 [2009]), thereby limiting any resulting prejudice (see People v Weber, 40 AD3d 1267, 1268 [2007], lv denied 9 NY3d 927 [2007]). The remaining challenges now raised were not preserved for appellate review by appropriate objections (see People v Williams, 8 NY3d 854, 855 [2007]; People v Adams, 39 AD3d 1081, 1083 [2007], lv denied 9 NY3d 872 [2007]). In any event, most of the challenged remarks during voir dire were appropriately directed at determining the prospective jurors’ views on credibility issues likely to be presented at trial. As for the summation, if any of the challenges defendant now raises had been preserved for our review, we would find that the majority of the challenged remarks “were within the broad latitude permitted to the prosecutor in responding to defense counsel‘s summation” (People v Wilhelm, 34 AD3d 40, 54 [2006] [internal quotation marks omitted]). A few comments in which the prosecutor impermissibly offered her personal views of the evidence or, in one case, improperly vouched for the victim‘s credibility (see id. at 54-55), were not so egregious, when viewed in the context of the summation as a whole, to establish a “flagrant and pervasive pattern” of
Defendant next contends that, in several instances, Supreme Court improperly permitted the People to elicit opinion testimony regarding the victim‘s credibility (see People v Ciaccio, 47 NY2d 431, 439 [1979]). Upon the prosecutor‘s redirect examination, a Child Protective Services caseworker was asked for his opinion of the victim‘s credibility. Defense counsel had opened the door to such questioning by asking the caseworker whether, in his previous work experience, he had known children to be untruthful, so his objection was properly overruled (see People v Lamphier, 302 AD2d 864, 865 [2003], lv denied 99 NY2d 656 [2003]; see generally People v Conway, 297 AD2d 398, 399 [2002], lv denied 99 NY2d 581 [2003]). The remaining claims now presented were not preserved. In any event, the testimony of the victim‘s mother did not constitute impermissible opinion testimony and, although no curative instruction was requested or given when a police investigator gave her opinion of the victim‘s credibility after defendant‘s objection had been sustained, the court‘s final instructions to the jury included a direction to disregard any such testimony (see People v Colvin, 37 AD3d 856, 858 [2007], lv denied 8 NY3d 944 [2007]; see also People v Corey, 233 AD2d 773, 774 [1996], lv denied 89 NY2d 984 [1997]).
Defendant next contends that he received the ineffective assistance of counsel as the result of multiple alleged errors by his trial attorney. Contrary to defendant‘s claim in this regard, defense counsel did not err in failing to object to the expert qualifications of a nurse practitioner who testified for the People, since she had completed the appropriate education, was board certified, and had considerable experience as a specialist in the area of obstetrics and gynecology (see People v Munroe, 307 AD2d 588, 591-592 [2003], lv denied 100 NY2d 644 [2003]). Further, although defense counsel‘s cross-examination of the nurse practitioner was brief, it was not entirely ineffective. Defendant‘s claim that his attorney should have challenged the medical evidence by obtaining colposcopic photographs or an independent medical examination of the victim is unsupported by any demonstration that these would have yielded favorable results and is essentially a disagreement with trial strategies and tactics (see People v Hamms, 55 AD3d 1142, 1145 [2008], lv denied 11 NY3d 925 [2009]). In regard to counsel‘s failure to object to allegedly improper remarks by the prosecutor, we find (as addressed above) that most of these remarks were not
Finally, as the People concede, defendant‘s sentence is illegal in that the periods of postrelease supervision imposed by Supreme Court were apparently based on the ranges set out in
Peters, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur.
Ordered that the judgment is modified, on the law, by vacating
GARRY, J.