        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

231
KA 14-02247
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD M. SWITTS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Donald E.
Todd, J.), rendered December 8, 2014. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the second
degree (six counts), sexual abuse in the second degree (two counts),
and sexual abuse in the third degree (three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of, inter alia, six counts of
criminal sexual act in the second degree (Penal Law § 130.45 [1]). In
appeal No. 2, defendant appeals from an order denying, without a
hearing, his motion pursuant to CPL 440.10 seeking to vacate the
judgment of conviction.

     We reject defendant’s contention in appeal No. 1 that County
Court erred in excluding evidence based on the Rape Shield Law (CPL
60.42; see People v Scott, 16 NY3d 589, 593-594). All of the evidence
in question, including evidence related to emergency contraception,
was within the scope of the statute as “[e]vidence of [the] victim’s
sexual conduct” (CPL 60.42; see generally People v Vogel, 66 AD3d
1367, 1368, lv denied 13 NY3d 942; People v Davis, 45 AD3d 1351, 1351-
1352), and “defendant failed to demonstrate that such evidence was
‘relevant and admissible in the interests of justice’ ” (Davis, 45
AD3d at 1351, quoting CPL 60.42 [5]; see People v Halter, 19 NY3d
1046, 1049; People v Williams, 61 AD3d 1383, 1383, lv denied 13 NY3d
751). Inasmuch as defendant was able to testify to alternative
explanations for the ambiguous content of a recorded telephone
conversation he had with the victim that was alleged by the People to
refer to the charged crimes, the court did not abuse its discretion in
precluding testimony that the conversation referred to other sexual
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                                                         KA 14-02247

conduct involving the victim (see generally Halter, 19 NY3d at 1049-
1050; People v Simmons, 106 AD3d 1115, 1116, lv denied 22 NY3d 1043).
Moreover, the alleged connection between one of the precluded lines of
testimony and a motive for the victim to fabricate her allegations was
speculative and “ ‘so tenuous that the [line of testimony] was
entirely irrelevant’ ” (People v Carrasquillo, 85 AD3d 1618, 1619, lv
denied 17 NY3d 814; see People v Perryman, 178 AD2d 916, 917, lv
denied 79 NY2d 1005).

     Contrary to defendant’s further contention in appeal No. 1, the
court did not err in denying his Batson application concerning the
People’s use of a peremptory challenge to excuse the sole Asian-
American prospective juror. The prosecutor gave race-neutral reasons
for excluding that prospective juror, i.e., her body language (see
People v Harris, 50 AD3d 1608, 1608, lv denied 10 NY3d 959; People v
Bodine, 283 AD2d 979, 979, lv denied 96 NY2d 898), her disclosure that
her stepdaughter had a conviction from a neighboring county (see
People v Ball, 11 AD3d 904, 905, lv denied 3 NY3d 755, reconsideration
denied 4 NY3d 471; see also People v Buntley, 286 AD2d 909, 909, lv
denied 97 NY2d 751), and her performance of work for the court’s law
clerk (see generally People v Allen, 86 NY2d 101, 110), and defendant
did not meet his ultimate burden of establishing that those reasons
were pretextual (see People v Torres, 129 AD3d 1535, 1536, lv denied
26 NY3d 936).

     Defendant contends in appeal No. 2 that the court erred in
denying his CPL 440.10 motion without a hearing to the extent that it
alleged that the People committed Brady and Rosario violations by
failing to disclose a flash drive containing a typewritten statement
by the victim that a police investigator used as a basis for the
victim’s supporting deposition. The People disclosed hard copies of
the typewritten statement and deposition prior to trial, and defense
counsel did not raise any objection when the investigator mentioned
the flash drive in his trial testimony. Even assuming, arguendo, that
the relevant part of the motion was not subject to denial on
procedural grounds (cf. CPL 440.10 [2] [b]; [3] [a]), we reject
defendant’s contention. Defendant did not make a prima facie showing
of a reasonable possibility that the nondisclosure of the flash drive
contributed to his conviction. Thus, regardless of whether he made a
specific discovery request encompassing the flash drive for purposes
of his Brady claim, he failed to establish materiality under Brady or
prejudice under Rosario (see People v Fuentes, 12 NY3d 259, 263-264,
rearg denied 13 NY3d 766; People v Jackson, 78 NY2d 638, 648-649;
People v Pennington, 107 AD3d 1602, 1603, lv denied 22 NY3d 958;
People v Saxton, 93 AD3d 1077, 1078-1079, lv denied 18 NY3d 998).

     Finally, we reject defendant’s contention in both appeals that he
was denied effective assistance of counsel. Defendant was not
entitled to a hearing on the part of his CPL 440.10 motion alleging
ineffective assistance of counsel because the trial record and the
motion submissions, including an affidavit from defendant’s trial
counsel, sufficiently established that counsel’s trial strategy was
consistent with the actions of a reasonably competent attorney (see
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                                                         KA 14-02247

People v Satterfield, 66 NY2d 796, 799-800; People v King, 44 AD3d
366, 366, lv denied 9 NY3d 1035; see generally People v Henderson, 27
NY3d 509, 514). Contrary to defendant’s contentions, counsel was not
ineffective in failing to conduct a more “hard-hitting” cross-
examination of the victim (see People v Izzo, 104 AD3d 964, 967, lv
denied 21 NY3d 1005; People v De Marco, 33 AD3d 1045, 1046; see also
People v Gaffney, 30 AD3d 1096, 1097, lv denied 7 NY3d 789), or in
failing to use the jury selection process to demonstrate that expert
testimony on child sexual abuse accommodation syndrome should be
precluded because the subject was within the understanding of the
jurors (see generally People v Nicholson, 26 NY3d 813, 829; People v
Morgan, 77 AD3d 1419, 1420, lv denied 15 NY3d 922).




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
