People v. SpositoPeople v. Sposito
| People v Sposito |
| Decided on April 22, 2021 |
| Appellate Division, Third Department |
| Publishеd by New York State Law Reporting Bureau pursuant to |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered:April 22, 2021
111155
v
Joseph Sposito, Appellant.
Calendar Date:January 5, 2021
Before:Garry, P.J., Clark, Aarons, Pritzker and Colangelo, JJ.
Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City (Donna Aldea of counsel), for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Pritzker, J.
Appeal, by permission, from an order of the Supreme Court (McDonough, J.), entered April 16, 2019 in Albany County, which denied dеfendant's motion pursuant to
Defendant faced charges following his sexual encounter with a victim who was allegedly physically helpless and incapable of consent due to her intoxication. Following a 2012 jury trial, he was convicted of rape in the first degree and criminal sexual act in the first degree. His subsequent motiоn for forensic DNA testing pursuant to
A criminal dеfendant is guaranteed the effective assistance of counsel by both the US and NY Constitutions and, pursuant to the more stringent standard under the NY Constitution, receives it when "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Baldi,
Defendant claims that trial counsel was ineffective in waiving a suppression hearing and in failing to consult with or call experts to rebut the People's expert proof, and some discussion of the facts is needed to place those arguments into context. The crimes for which defendant was convicted arose out of a sexual encounter with the victim at [*2]a mutual acquaintance's home, where they had gone after an evening of heavy drinking, and it was alleged that the victim was so intoxicated as to be "incapable of consent by reason of being physically helpless" (
With that background in mind, we turn to trial counsel's decision to waive a Huntley hearing and allow defendant's recorded statements into evidence at trial. A defense attorney is not obliged to seek suppression of a defendant's statements, and it is a "rare case where a defendant shows the absence оf a strategic or legitimate explanation in counsel's strategy not to" do so (People v Zeh,
In support of his belief that the admission of the statements would be beneficial, counsel explained that defendant had maintained throughout the interview that the victim was an active and willing participant in the sexual encounter and that, if the statements were suppressed, the jury would only hear about the changes that defendant had made to his story when, as expected, he testified at trial and was cross-examined about them (see e.g. People v Martin,
Next, although defendant complains that counsel failed to consult with experts or present their testimony to rebut proof related to the victim's sexual assault examination, her degree of intoxication and the presence of defendant's genetic material in her anus, the hearing evidence reflected that counsel "had a strategic reason for [that] failure" (People v Gross,
Counsel's hearing testimony and the trial record reflect that he pursued that strategy by cross-examining the People's expеrts and carefully eliciting that neither the damaging findings of the victim's sexual assault examination nor her estimated blood alcohol concentration ruled out her being conscious and engaging in consensual sex. One of those experts, the sexual assault nurse examiner, also confirmed that the victim was fully awake and aware when they spoke a few hours after the sexual encounter. Counsel further elicited from eyewitnesses that the victim — who did not remember аrriving at the acquaintance's residence, going to bed or the sexual encounter itself — was moving and speaking soon before and after the encounter and was heard making noises during it that were suggestive of consensual sex. In addition, counsel described in his hearing testimony how he sought out other evidence to support his strategy, such as subpoenaing an emergency medical technician who he declined to put on the stand after learning that, notwithstanding written indications to the contrary, the victim was "effectively unconscious" when she was transported in an ambulance after the sexual encounter. The foregoing depicts the competent execution of a reasonable strategy by counsel, and the contention that expert proof could have furthered it in some way amounts to a "disagreement with defense counsel's tactics and strategies . . . [that does not] rise to the level of true ineffectiveness" (People v Morehouse,
In short, there were strategic explanations for the complained-of actions of counsel and, as defendant failed to demonstrate that a reasonably competent attorney would not have taken them (see
Garry, P.J., Clark and Aarons, JJ., concur.
Colangelo, J. (dissenting).
I respectfully dissent. Because, in my view, it was objectively unreasonable for defendant's trial counsel to waive a Huntley hearing and to fail to consult with and/or call experts during the trial, defendant was deprived of the effective assistance of counsel. I would therefore reverse and order a new trial.
"To establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct" (People v Bowen,
First, defense counsel was ineffective for failing to seek suppression of his unconstitutionally obtained confession and recorded telephone conversation by waiving a Huntley hearing that the trial court had granted. "While the failure of counsel to make a pretrial suppression motion generally does not necessarily equate to a deprivation of meaningful representation, counsel may still be deemed ineffective in the rare case where a defendant shows the absence оf a strategic or legitimate explanation in counsel's strategy not to pursue a suppression motion," and, in this regard, "counsel's subjective reasons for this strategy are immaterial" (People v Zeh,
At the CPL аrticle 440 hearing, defendant's trial counsel explained that he waived the Huntley hearing and consented to the admission of the video recording of defendant's interrogation during the People's direct case because he believed that the video was "more good than bad." Counsel also explained that, since he intended to have defendant testify, it would be better for the People to introduce and play the video to avoid impeachment of defendant with the video or allegations of recent fabrication when he testified. However, the efficacy of counsel's strategy is, at best, questionable in view of defendant's statements toward the end of the interrogation, which contradicted his prior rendition of events and tended to undermine his defense of conscious consent. Counsel conceded, among other things, that defendant's post-Miranda statements, if in response to an uninterrupted chain of questiоning punctuated by a defective Miranda warning and waiver, might have been subject to suppression.
The foregoing establishes that defendant had a colorable basis to argue that his pre-Miranda statements were the product of custodial interrogation in violation of his right to counsel and that his subsequent statements were the product of an uninterrupted chain of questioning punctuated by a defective Miranda warning and waiver (see People v White,
Defendant was also denied meaningful representation as a result of counsel's failure to consult with experts or call expert witnesses on his behalf to rebut key portions of the People's proof purporting to establish that the victim was incapable of consent by reason of being physically helpless (see
At trial, defendant denied having anal sex with the victim, but he admitted having sexual intercourse with the victim and maintained that she was conscious and had consented. The victim claimed that she did not remember and therefore could not testify about the circumstances of having sexual intercourse with defendant. The People, in order to prove physical helplessness, an element of both rape in the first degree and criminal sexual act in the first degree (see
Robert Belloto, a forensic toxicologist, testified to, among other things, a 25% margin of error in a BAC reading, which could have lowered the victim's BAC at the hospital from .236 to .177 or even lower. If the jury accepted such testimony, it could have found that the victim was not in a stupor or unconscious at the time of the incident. Susan Dantoni, a board-certified gynecologist with extensive experience in sexual assault examinations, and Laura Schile, a forеnsic scientist with a specialty in DNA, serology and evidence collection and handling, both testified at the hearing that, contrary to the SANE's trial testimony, the victim was not bleeding at all, the victim's injuries were not severe, and the diagnosis of "sexual assault" in the medical records, which defense counsel consented to admit at trial, was scientifically impossible to make based upon the evidence. Schile testified as to a plausible explanation for the presence of defendant's DNA in the victim's anus — to wit, the improper use of a speculum rather than an anoscope, which could have transferred material from the exterior to the interior of the anus. As the record demonstrates, trial counsel did not explore the source of the blood and, instead, cross-examined the SANE about a friable cervix theory for which there was no basis in the record. Schile explained that she would have called the jury's attention to the improper collection and unreliability of the scientific evidence introduced by the People based upon the lack of documentation, the use of an improper tool and the discarding of swabs of blood taken from the victim's vagina. She would have advised counsel not to stipulate that the sexual offense collection kit had been properly taken and properly secured from the victim.
The record evidence reveals that the People's summation relied heavily on the nature and extent of the victim's alleged injuries, the victim's level of intoxication and defendant's confession to prove that the victim was physically helpless at the time that the alleged acts occurred. An example of the prejudice to defendant by counsel's failure to rebut the SANE's testimony is the graphic reference to her description of the victim's injuries as being inconsistent with dеfendant's claim that the victim consented. In my view, "[c]ounsel's admitted failure to investigate the victim's [medical issues] meant that he was unprepared to effectively cross-examine the SANE, with disastrous consequences for defendant's case" (People v Cassala,
ORDERED that the order is affirmed.
Footnote 1: The recording continued after investigators left the room, and it depicts defendant making а phone call to a friend in which he made clear that he had not raped the victim but admitted, in crude terms, that they had vigorous consensual sex. There is some dispute as to whether the video of the call was shown to the jury, but the record shows that defendant was cross-examined regarding his crude language and the People referenced it in their summation. In any event, counsel objected to the admission of the recorded phone call and thereafter objected to the use of its contents on legitimate grounds, and defendant's efforts to argue that counsel should have objected on different, legally untested grounds conflates "true ineffectiveness with mere losing tactics and accord[s] undue significance to retrospective analysis" (People v Baldi,
Footnote 2: Counsel's discovery concerns were undoubtedly valid, as the Legislature had not yet enacted CPL article 245 to ensure thorough and prompt disclosure in criminal matters (see CPL art 245, as added by L 2019, ch 59, part LLL, § 2).