People v. Keane

221 A.D.3d 1586

198 N.Y.S.3d 471 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Timothy C. KEANE, Defendant-Appellant. (Appeal No. 1.)

855

KA 20-01032

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 17, 2023

TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT.

TIMOTHY C. KEANE, DEFENDANT-APPELLANT PRO SE.

KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND DELCONTE, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved, and the matter is remitted to Jefferson County Court for further proceedings in accordance with the following memorandum: In appeal No. 1, defendant was convicted following a jury trial of unlawful manufacture of methamphetamine in the third degree ( Penal Law § 220.73 [1] ) and, in appeal No. 2, he was convicted following the same jury trial of sexual abuse in the first degree (§ 130.65 [4]), attempted use of a child in a sexual performance (§§ 110.00, 263.05), forcible touching (§ 130.52 [1]), and endangering the welfare of a child (§ 260.10 [1]). The criminal investigation of defendant initially focused on his suspected involvement in a methamphetamine manufacturing operation at a property where he had recently resided. While investigators were searching the vacant property, a neighbor approached one of the detectives and reported his concern about prior contact between defendant and the neighbor's 11-year-old daughter. The child was subsequently interviewed and reported that defendant had shown her pornographic videos and sexually assaulted her on the front porch of the property under investigation for drug activity. Two indictments were then filed against defendant, one charging him with unlawful manufacture of methamphetamine in the third degree and the other charging him with multiple sex offenses involving the child.

Defendant contends in his main and pro se supplemental briefs that County Court erred in granting the People's motion to consolidate the indictments. We reject that contention. The indictments were consolidated for trial pursuant to CPL 200.20, which permits a court to consolidate indictments against a defendant when they charge offenses that involve "different criminal transactions" but "are of such nature that either proof of the first offense [or set of offenses] would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first" ( CPL 200.20 [2] [b] ; see 200.20 [4]; People v. Bongarzone , 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083 [1987] ). Contrary to defendant's contention, the evidence of the drug offense and the evidence of the sex offenses were each material and admissible to help establish the identity of defendant as the perpetrator of the other offense or set of offenses (see People v. Murphy , 28 A.D.3d 1096, 1097, 813 N.Y.S.2d 837 [4th Dept. 2006], lv denied 7 N.Y.3d 760, 819 N.Y.S.2d 885, 853 N.E.2d 256 [2006] ; see also People v. Nelson , 233 A.D.2d 926, 926-927, 649 N.Y.S.2d 754 [4th Dept. 1996] ). Specifically, inter alia, defendant's recorded interview with a detective inculpated him in both the drug offense and the sex offenses, and the testimony of two detectives, the victim, and the victim's father was necessary to establish that defendant was residing on the property at the time that methamphetamine was being manufactured there and the course of his interactions with the victim at the same property. We reject defendant's contention in his pro se supplemental brief that consolidating the indictments for trial was contrary to ( People v. Molineux , 168 N.Y. 264, 61 N.E. 286 [1901] ) and its progeny, inasmuch as Molineux applies to prior uncharged crimes and bad acts committed by a defendant, not to charged crimes (see People v. Cass , 18 N.Y.3d 553, 559, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ).

Defendant next contends in his main and pro se supplemental briefs that he was denied effective assistance of counsel. We reject that contention. To establish a claim of ineffective assistance of counsel, a defendant must show that defense counsel did not provide "meaningful representation," based upon "the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation" ( People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Defendant's contentions that his counsel was too harsh in cross-examining the victim, inadvertently elicited damaging testimony from a witness on redirect examination, and should not have called two of the defense witnesses but should have called another witness, "involve ‘simple disagreement[s] with strategies, tactics or the scope of possible cross-examination, weighed long after the trial,’ and thus are insufficient to establish ineffective assistance of counsel" ( People v. Kranz , 215 A.D.3d 1253, 1254, 187 N.Y.S.3d 884 [4th Dept. 2023], lv denied 40 N.Y.3d 997, 197 N.Y.S.3d 101, 219 N.E.3d 862 [2023], quoting People v. Flores , 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ). Defendant's contention regarding his own direct testimony cannot form the basis for an ineffective assistance of counsel claim, because "[t]he fundamental decision whether to testify at trial is reserved to the defendant, not defense counsel" ( People v. Cosby , 82 A.D.3d 63, 66, 916 N.Y.S.2d 689 [4th Dept. 2011], lv denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011]), and his disagreements with the scope of the questioning itself relate to strategy (see People v. Gibson , 173 A.D.3d 1785, 1786, 104 N.Y.S.3d 805 [4th Dept. 2019], lv denied 34 N.Y.3d 931, 109 N.Y.S.3d 753, 133 N.E.3d 459 [2019] ). Defense counsel's failure to renew defendant's motion for a trial order of dismissal at the close of the defense case did not amount to ineffective assistance because the court had reserved decision on the motion and, therefore, the claim of insufficiency was preserved (see People v. Payne , 3 N.Y.3d 266, 273, 786 N.Y.S.2d 116, 819 N.E.2d 634 [2004], rearg denied 3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975 [2004] ; People v. Nowlin , 145 A.D.3d 1447, 1449, 44 N.Y.S.3d 625 [4th Dept. 2016], lv denied 29 N.Y.3d 1035, 62 N.Y.S.3d 304, 84 N.E.3d 976 [2017]). Contrary to defendant's contention in his pro se supplemental brief, his defense counsel elicited trial testimony in support of the conclusion that defendant did not have constructive possession over methamphetamine manufacturing materials at his former residence. Defendant's contentions in his pro se supplemental brief that his counsel gave him false information, failed to call expert and alibi witnesses, failed to argue that defendant had an alibi, and failed to pursue arguments that defendant was framed all concern matters outside the record, and thus must be raised in a motion pursuant to CPL 440.10 (see People v. Johnson , 195 A.D.3d 1420, 1421-1422, 150 N.Y.S.3d 424 [4th Dept. 2021], lv denied 37 N.Y.3d 1146, 159 N.Y.S.3d 336, 346, 180 N.E.3d 500, 510 [2021]). To the extent that defendant contends in his pro se supplemental brief that he was denied effective assistance of appellate counsel, that contention is premature and must be raised in an error coram nobis proceeding (see People v. Forsythe , 105 A.D.3d 1430, 1431, 964 N.Y.S.2d 363 [4th Dept. 2013] ).

Defendant also contends in his main brief that the court erred in permitting two detectives to testify regarding defendant's internet search history and text messages involving sexual role-play, arguing that the testimony was so inflammatory that its prejudicial effect exceeded its probative value. Trial courts have broad discretion in deciding whether to admit evidence challenged as unduly prejudicial, and a trial court's decision will be disturbed only where it has "either abused its discretion or exercised none at all" ( People v. Walker , 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] [internal quotation marks omitted]). Here, the evidence elicited during the People's direct case regarding defendant's...