People v. SpositoPeople v. Sposito
Appeal, by permission, from an order of the Supreme Court (McDonough, J.), entered April 16, 2019 in Albany County, which denied defendant‘s motion pursuant to
Defendant faced charges following his sexual encounter with a victim who wаs 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 motion for forensic DNA testing pursuant to
A criminal defendant 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 сase, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981];
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
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 аt 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 of a strategic or legitimate explanation in counsel‘s strategy not to” do so (People v Zeh, 144 AD3d 1395, 1396 [2016], lv denied 29 NY3d 954 [2017]; see People v Rivera, 71 NY2d 705, 709 [1988]). It is initially apparent that counsel did not overlook the issue, as he was aware that there was an arguable basis to suppress the recorded statements and sought that relief as part of his pretrial оmnibus motion. Counsel explained that this was not because he believed that suppression was likely, but rather because he knew that the motion would force the People to go beyond their usual “stingy” discovery practices and turn over grand jury testimony and other items prior to the suppression hearing.2
Indeed, counsel testified that he did not want the statements suppressed because he believed that they would benefit the defense at trial, which is why he waived the Huntley hearing on the morning it was to occur after receiving the sought-after discovery and discussing the matter with defendant.
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 stоry when, as expected, he testified at trial and was cross-examined about them (see e.g. People v Martin, 8 AD3d 883, 886 [2004], lv denied 3 NY3d 677 [2004]). In contrast, if the entire interview were put into evidence with appropriate redactions, the defense would benefit from having the jury repeatedly hear defendant‘s exculpatory version of events and be assured that almost all of his account had remained consistent over time. Counsel further believed that any damage caused by the jury seeing defendant walk back aspects of his story could be ameliorated, reasoning that jurors could be persuaded to sympathize with a “desperate” and “confused” defendant who wavered on a few points after prolonged, increasingly hostile questioning, but remained “adamant that everything that had just happened was consensual and [that the victim] was awake for it.” The trial record reflects that counsel ably pursued that strategy and, in our view, defendant gave no compelling reason to doubt that “counsel‘s decision to waive a Huntley hearing was legitimately based upon . . . the consistency of defendant‘s statement to the police, and coincided with the defense pursued at trial” (People v Umana, 143 AD3d 1174, 1175 [2016], lv denied 29 NY3d 1037 [2017]; see People v De Mauro, 48 NY2d 892, 893-894 [1979]; People v Rodabaugh, 26 AD3d 598, 599-600 [2006]; compare People v Carnevale, 101 AD3d 1375, 1381 [2012]).
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 presencе of defendant‘s genetic material in her anus, the hearing evidence reflected that counsel “had a strategic reason for [that] failure” (People v Gross, 26 NY3d 689, 694 [2016]; see People v Little, AD3d , , 2021 NY Slip Op 01235, *1 [2021]; People v Olson, 162 AD3d 1249, 1251 [2018], lv denied 32 NY3d 1067 [2018]; People v Auleta, 82 AD3d 1417, 1419-1420 [2011], lv denied 17 NY3d 813 [2011]). To reiterate, defendant and the victim indisputably had a sexual encounter, and the charges against defendant alleged that he had anal and vaginal sex with a victim who was physically helpless and, as a result, was unable to consent (
Counsel‘s hearing testimony and the trial record reflect that he pursued that strategy by cross-examining the People‘s experts 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 еxaminer, 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 arriving 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, 5 AD3d 925, 927 [2004], lv denied 3 NY3d 644 [2004]; see People v Mosley, 155 AD3d 1124, 1128-1129 [2017], lv denied 31 NY3d 985 [2018]; People v Morgan, 149 AD3d 1148, 1154 [2017]; People v Green, 108 AD3d 782, 786 [2013], lv denied 21 NY3d 1074 [2013]).
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 (
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, 185 AD3d 1219, 1220-1221 [2020] [internal quotation marks and citations omitted]; see People v Caban, 5 NY3d 143, 152 [2005]; People v Cassala, 130 AD3d 1252, 1253 [2015], lv denied 27 NY3d 994 [2016]). I find that defendant has established such claim here.
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 representatiоn, counsel may still be deemed ineffective in the rare case where a defendant shows the absence of 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, 144 AD3d 1395, 1396-1397 [2016], lv denied 29 NY3d 954 [2017] [internal quotation marks, ellipsis, brackets and citations omitted]). It is well settled that Miranda warnings are required prior to custodial interrogation and that a statement obtаined in violation of this principle must be suppressed (see Miranda v Arizona, 384 US 436, 471-472 [1966]; People v Berg, 92 NY2d 701, 704 [1999]; People v Henry, 114 AD3d 1025, 1026 [2014], lv dismissed 22 NY3d 1199 [2014]). A suspect is in custody when, under the circumstances, “a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave” (People v Paulman, 5 NY3d 122, 129 [2005]; see People v Pittman, 178 AD3d 1136, 1137 [2019], lv denied 34 NY3d 1162 [2020]). Defendant‘s videotaped statement revealed that, among other things, defendant was questioned extensively at the police station before Miranda warnings were given, and investigators engaged in a discussion with defendant about the warnings before they were read. Defendant then gave inculpatory statements that contradicted his earlier statements and what would ultimately be his trial testimony, admitting that the victim was unresponsive when he got into bed with her and that she was unable to be roused by his attempts to communicate with her. Defendant thereafter invoked his right to counsel. After doing so
At the
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, 10 NY3d 286, 291-292 [2018], cert denied 555 US 897 [2008]; People v Chapple, 38 NY2d 112, 115 [1975]). There was also a colorable basis to argue that the investigator‘s statements embellished the Miranda warnings, rendering the warnings inadequate and ineffective (see People v Dunbar, 24 NY3d 304, 316 [2014], cert denied 575 US 1005 [2015]). While I do not pass on whether counsel would have ultimately succeeded in suppressing defendant‘s videotaped confession and recorded phone call, I find that “a colorable basis existed for seeking suppression. Given the potential benefit in doing so, [there was] no strategic or legitimatе reason to let . . . this crucial evidence come in unabated at trial,” and defendant was therefore deprived of his constitutional right to meaningful representation in this regard (People v Zeh, 144 AD3d at 1398; see People v Carter, 142 AD3d 1342, 1343 [2016]).
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 consеnt by reason of being physically helpless (
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 (
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 assаult examinations, and Laura Schile, a forensic 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 referencе to her description of the victim‘s injuries as being inconsistent with defendant‘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, 130 AD3d at 1254; see People v Lanier, 191 AD3d at 1095-1096). The totality of the record reveals that, at crucial stages of the representation, trial counsel failed to consult with and was unprepared to call medical experts
ORDERED that the order is affirmed.