People v. LongPeople v. Long
Appeal from a judgment of the County Court of Warren County (Austin, J.), rendered September 5, 2001, upon a verdict convicting defendant of the crimes of rape in the first degree and sexual abuse in the first degree.
Defendant and the victim were coworkers аnd social friends. On January 28, 2001, the victim watched the Super Bowl with defendant at his home, intending to spend the night and ride to work with defendant the following day. The victim had stayed the night at defendant’s home previously and the two had consensual sexual intercourse on such occasions. However, according to the victim, on this occasion she did not feel well and, when defendant made sexual advances, she rejected them, whereupon he forcibly raped her. The victim then called a fаmily member to come and get her and, after leaving defendant’s home, she called the police and went to the еmergency room.
At trial, defendant testified before the jury and did not deny having sexual relations with the victim on the night in question, but claimed that it was consensual. In accordance with a pretrial Sandoval compromise, the People were limited on cross-examination to asking defendant if he had been convicted of two felonies without exploring the nature of those сrimes. However, after defendant testified on direct examination, “I’ve never been accused of sexual harassment or anything. * * * I would never hurt a woman[,] like that, never. I have respect for women I always have,” the People moved to expand the Sandoval ruling to allow inquiry into the full underlying facts of defendant’s two prior felony convictions for attempted sexual аbuse and into additional uncharged complaints from eight other women alleging sexual abuse by defendant. County Court ruled, ovеr defendant’s objection, that defendant’s comment opened the door to inquiries concerning the fact that defendant’s prior convictions were for attempted sexual abuse in the first degree and to the facts contained in defеndant’s plea al
Defendant first contends that he was deprived of the effective assistance of counsel, primarily because of defensе counsel’s alleged failure to apprise him of the potential pitfalls of testifying on his own behalf. Specifically, defendant complains that by asking him an open ended question at the end of direct examination, defense counsel “led [him] down this road to slaughter.” The damage to defendant’s defense, however, came from his own misrepresentations while undеr oath, rather than any clear error by defense counsel. “[T]rial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness” (People v Baldi,
Defendant also complains of defense counsel’s failure to оbject to a weekend adjournment during jury deliberations and to County Court’s voir dire of the jury following that adjournment concerning mеdia coverage over the weekend. The court adjourned the trial at 4:00 p.m. on Friday, after the jurors requested a read back of defendant’s testimony on direct examination. During the ensuing weekend, the media reported about the trial and commented on defendant’s criminal history. On Monday, the court questioned the jurors and ascertained that none of them hаd read or heard the allegedly inflammatory news reports. Defense counsel then moved for a mistrial, without success. Thе jury ultimately withdrew its request for the read back of defendant’s testimony and, following read backs of testimony of other witnesses, returned a guilty verdict later that morning. On these facts, we perceive no clear error in defense counsel’s actiоns with respect to the adjournment and media coverage, much less an error which “so seriously compromises a dеfendant’s right to a fair trial, [that] it will qualify as ineffective assistance” (People v Hobot,
Further, the trial transcript reveals that defense counsel delivered cogent opening and closing statements, made appropriate objections and motions and effectively cross-examined each witness. For example, defense counsel’s cross-examination of the victim emphasized her prior sexual relationship with defendant, the fact that she was drinking on the night in ques
Contrary to defendant’s assertions, legally sufficient record evidence exists to support his conviction. The victim’s testimony that the sex was forcible was sufficient to establish the only contested elements of the crime charged — force and lack of consent (see People v Sehn,
Defendant’s remaining contеntions are either unpreserved for our review or have been considered and rejected.
Crew III, J.P., Carpinello, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed.