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

50
KA 14-00852
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JOSEPH A. STEFANOVICH, DEFENDANT-APPELLANT.


BRUCE R. BRYAN, 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 (James M.
Metcalf, A.J.), rendered February 21, 2014. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of rape in the first degree (Penal Law § 130.35 [1]),
defendant contends that he was deprived of effective assistance of
counsel at trial. According to defendant, his attorney was
ineffective because he allowed the jury to learn that he was a
registered sex offender who had previously been convicted of a felony
sexual offense. We agree with that contention and grant defendant a
new trial.

     On the evening of July 30, 2005, the victim reported to the
police in the Village of Phoenix that a young man whom she did not
know dragged her into the woods and raped her. She had injuries
consistent with a violent assault, and semen from the victim’s vagina
was recovered at the hospital by use of a rape kit. In 2010,
approximately five years after the attack, the police learned that the
DNA from the semen matched defendant’s DNA profile, which was in the
Combined DNA Index System (CODIS) because he was a convicted felon.
When a police investigator interviewed defendant two years later, in
December 2012, defendant said that he did not know or recognize the
victim and never had sexual intercourse with her. Defendant agreed to
give an oral swab, providing the police with his DNA, and subsequent
testing conclusively established that defendant’s DNA matched that
from the semen preserved in the rape kit. Defendant was arrested on
January 31, 2013 and charged with rape in the first degree.

     At the outset of the jury trial, and before commencement of voir
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                                                         KA 14-00852

dire, defense counsel informed County Court that defendant would be
testifying at trial. During the ensuing Sandoval hearing, the
prosecutor stated that he wished to cross-examine defendant with
respect to three criminal convictions: a 2008 misdemeanor conviction,
for driving while intoxicated, a 2005 felony conviction, for sexual
abuse in the first degree, and a 1994 felony conviction, for driving
while intoxicated. With respect to the sexual abuse conviction, the
prosecutor, acknowledging that “the nature of that offense” is “so
similar to the present charge,” requested a Sandoval compromise
pursuant to which he would be allowed to ask defendant “if he was
convicted of a felony offense but not specify the title of that
offense or the underlying facts.” The court agreed to that request,
noting that the probative value of allowing the jury to know of
defendant’s prior sex offense “would not outweigh [its] prejudicial
effect.” With respect to the driving while intoxicated convictions,
the court ruled that defendant could be impeached with the misdemeanor
but not the felony, which the court deemed too remote.

     The prosecutor then advised the court of a potential problem
arising from the audio recording of the police investigator’s
interview with defendant, i.e., that during the interview repeated
mention was made of defendant’s status as a registered sex offender.
Although the references to defendant being a sex offender could easily
have been edited out of the recording, defense counsel stated that he
did not object to the recording being played in its entirety for the
jury inasmuch as the People would “probably introduce” documents
pertaining to the testing of defendant’s DNA that refer to his status
as a sex offender. Defense counsel evidently concluded that the jury
would learn that defendant was a registered sex offender even if an
edited recording were played to the jury.

     During voir dire, defense counsel twice informed the prospective
jurors that defendant had previously committed a sexual offense,
asking whether that would affect anyone’s ability to be impartial.
One prospective juror answered “Yeah,” explaining that, given
defendant’s prior sexual conviction, he probably could not entertain
the concept of defendant being not guilty of the sexual crime charged
in this case. Defense counsel revealed his trial strategy during his
opening statement, which was to argue that the police locked in on
defendant as a suspect merely because he is a registered sex offender.
“Ladies and gentlemen,” defense counsel added, “my client, even though
he is a registered sex offender, is presumed innocent.”

     At trial, the investigator who interviewed defendant testified
for the People, and the recording of that interview was played for the
jury, including the parts that refer to defendant being a registered
sex offender. The investigator testified that he developed defendant
as a suspect because defendant’s DNA profile in CODIS matched the DNA
profile of the rapist. During cross-examination of the investigator,
defense counsel made reference once again to defendant being a
registered sex offender. Defendant later took the stand in his own
defense, acknowledging on direct examination that he pleaded guilty to
a felony sexual offense in 2005, which required him to register as a
sex offender. Defendant then testified that he met the victim on the
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                                                         KA 14-00852

day in question and had consensual sexual intercourse with her in the
woods.

     During his summation, defense counsel conceded that the victim
had been raped in the woods, but maintained that defendant merely had
consensual intercourse with her earlier that same day in those same
woods. Defense counsel then made one last reference to defendant’s
status as a registered sex offender: “The state thought that this was
going to be easy. My client is a registered sex offender. He’s not
here - - he’s not here to be judged on his morality.” The jury
returned a guilty verdict.

     It is well settled that “mere disagreement with trial strategy is
insufficient to establish that defense counsel was ineffective”
(People v Henry, 74 AD3d 1860, 1862, lv denied 15 NY3d 852). At the
same time, however, an attorney should not be deemed effective simply
because he or she followed a strategy. Rather, there must be some
examination of the reasonableness of the strategy. The Court of
Appeals made that point clear when it wrote: “As long as the defense
reflects a reasonable and legitimate strategy under the circumstances
and evidence presented, even if unsuccessful, it will not fall to the
level of ineffective assistance . . . a claim of ineffective
assistance of counsel will be sustained only when it is shown that
counsel partook ‘an inexplicably prejudicial course’ ” (People v
Benevento, 91 NY2d 708, 712-713, quoting People v Zaborski, 59 NY2d
863, 865 [emphasis added]).

     Here, we conclude that defense counsel’s strategy, i.e., to allow
the jury to know that defendant was a registered sex offender and then
argue that the police focused their investigation on defendant because
he was a registered sex offender, was based on an obviously false
premise. The police focused their investigation on defendant because
his DNA profile matched that of the rapist, not because he was a
registered sex offender. Moreover, defendant’s DNA profile was in
CODIS because he was a convicted felon, not because he had committed a
sexual offense. This is not to say that defense counsel pursued an
unreasonable defense theory at trial. The theory was that defendant
had consensual intercourse with the victim on the same day that she
was raped by someone else. In pursuing that theory, however, it was
unnecessary for defense counsel to inform the jury that defendant was
a registered sex offender. In fact, any chance that the jurors would
have believed defendant’s testimony about the intercourse being
consensual was likely extinguished once they learned that he had
previously committed a sex offense. In short, defendant derived no
discernible benefit from the jury knowing that he was a registered sex
offender, and was highly prejudiced thereby.

     It must be emphasized that defendant received a favorable
Sandoval ruling pursuant to which he could have testified at trial
without being asked about the prior conviction of a sexual offense.
The prosecutor was permitted to ask merely whether he was convicted of
a felony. Also, as previously noted, the references to defendant’s
status as a registered sex offender on the audio recording of the
police investigator’s interview with defendant could easily have been
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                                                         KA 14-00852

redacted. The relevant parts of the interview related to defendant’s
assertions that he did not know the victim and did not have sexual
intercourse with her. Indeed, the court was open to the idea of
redacting the prejudicial portions of the recording until defense
counsel stated that he did not object to the recording being played in
its entirety. Similarly, any references to defendant as a sex
offender on the DNA documents could have been redacted. In any event,
no such documents were offered by the People at trial or otherwise
admitted in evidence.

     In sum, we conclude that defense counsel “partook ‘an
inexplicably prejudicial course’ ” of action by allowing the jury to
know that defendant is a registered sex offender (id.). Although the
proof of guilt may have been overwhelming, defense counsel’s error was
so “egregious and prejudicial as to compromise . . . defendant’s right
to a fair trial” (People v Caban, 5 NY3d 143, 152; see generally
People v Crimmins, 36 NY2d 230, 237-238).

     Defendant’s further contention that the evidence is legally
insufficient to establish his guilt is unpreserved for our review (see
People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678) and, in any
event, it lacks merit. Viewing the evidence in the light most
favorable to the People, as we must (see People v Contes, 60 NY2d 620,
621), we conclude that there is a valid line of reasoning and
permissible inferences that could lead a rational person to the
conclusion reached by the jury based on the evidence at trial, i.e.,
that defendant had sexual intercourse with the victim by forcible
compulsion (see generally People v Bleakley, 69 NY2d 490, 495).
Viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we further
conclude that the verdict is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495). Even assuming, arguendo,
that a different verdict would not have been unreasonable, we cannot
conclude that the jury failed to give the evidence the weight it
should be accorded (see id.).

     We have reviewed defendant’s remaining contentions, and conclude
that none constitutes a further ground for reversal.




Entered:   February 11, 2016                    Frances E. Cafarell
                                                Clerk of the Court
