                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   July 21, 2016                   107292
                                                       107363
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DANIEL D. STAHL,
                    Appellant.
________________________________


Calendar Date:   June 2, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.

                             __________


      D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel),
for appellant.

      G. Scott Walling, Special Prosecutor, Schenectady, for
respondent.

                             __________


McCarthy, J.P.

      Appeals (1) from a judgment of the County Court of Essex
County (Meyer, J.), rendered May 17, 2012, convicting defendant
following a nonjury trial of the crimes of rape in the first
degree and sexual abuse in the first degree, and (2) by
permission, from an order of said court, entered December 8,
2014, which denied defendant's motion pursuant to CPL 440.10 to
vacate the judgment of conviction, without a hearing.

      In June 2011, defendant was charged in a seven-count
indictment with, among other things, rape in the first degree and
sexual abuse in the first degree. The charges stem from the
allegation that, among other things, defendant drugged the victim
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with Xanax, without her knowledge, before proceeding to engage in
sexual acts with her while she was physically helpless. After a
nonjury trial, County Court found defendant guilty of rape in the
first degree and sexual abuse in the first degree, acquitted him
of the remaining charges and thereafter sentenced him to an
aggregate prison term of 12 years to be followed by 10 years of
postrelease supervision and ordered him to pay restitution and a
fine. Defendant subsequently moved pursuant to CPLR article 440
to vacate the judgment of conviction, claiming, among other
things, that he was denied the effective assistance of counsel
due to a failure to seek the Trial Judge's recusal and a failure
to explain to defendant the details of a personal relationship
that one of defendant's counsel had with that Judge. County
Court denied the motion without a hearing. Defendant appeals
from the judgment and, by permission, from the subsequent order.

      County Court properly denied defendant's motion to dismiss
the indictment. On June 20, 2011, the People served defendant
with notice that they were presenting their case to the grand
jury on June 29, 2011 and specifically advised defendant to
notify them in writing if he intended to testify before the grand
jury. Defendant did not notify the People in writing of his
intention to testify at the June 2011 presentment and, therefore,
defendant's rights were not violated when the indictment was
obtained without his testimony (see People v Medeiros, 116 AD3d
1096, 1097 [2014], lv denied 24 NY3d 1045 [2014]; People v Tole,
94 AD3d 1334, 1334-1335 [2012], lv denied 19 NY3d 968 [2012];
People v Caban, 89 AD3d 1321, 1322 [2011]).

      Defendant's arguments that the verdict was based on legally
insufficient evidence and that it was against the weight of the
evidence because the victim was not physically helpless and
defendant did not have sexual intercourse with her are both
without merit. Considering the evidence, including the victim's
testimony regarding her alcohol consumption and limited ability
to remember the night in question, the expert testimony regarding
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Benzodiazepine1 found in the victim's urine and the expert
testimony linking defendant through DNA analysis to sperm found
on the tampon that the victim was wearing and to sperm found on
an anal swab from the victim, we conclude that the evidence was
legally sufficient (see People v Kessler, 122 AD3d 1402, 1403
[2014], lv denied 25 NY3d 990 [2015]) and supported by the weight
of the credible evidence (see People v Yontz, 116 AD3d 1242, 1243
[2014], lv denied, 23 NY3d 1026 [2014]; People v Bjork, 105 AD3d
1258, 1260-1261 [2013], lv denied 21 NY3d 1040[2013], cert denied
134 S Ct 1306 [2014]).

      Next, as the People concede, law enforcement lacked the
necessary grounds to seize defendant when an officer stopped him
while he was driving in order to inform him that law enforcement
wished to speak to him. Nonetheless, that violation did not
require the suppression of a subsequent statement that defendant
made to law enforcement. The attenuation doctrine, which
addresses whether evidence obtained subsequent to such an illegal
seizure must be suppressed, "requires a court to consider the
temporal proximity of the [seizure] and the confession, the
presence of intervening circumstances and, particularly, the
purpose and flagrancy of the official misconduct" (People v
Bradford, 15 NY3d 329, 333 [2010] [internal quotation marks and
citation omitted). Here, after the brief roadside seizure ended,
defendant voluntarily drove himself to a police station and
agreed to speak to a law enforcement officer there. Before
defendant gave a statement, he received Miranda warnings. In
light of these facts, defendant's statement was attenuated from
the illegal police conduct and, thus, was not subject to
suppression (see People v Bradford, 15 NY3d at 333-335; People v
Buchanan, 136 AD3d 1293, 1294 [2016]).

      In addition, County Court did not err in allowing the
People to elicit bad act evidence in the form of testimony from
other people regarding defendant's offer of Xanax to them. The
testimony was directly relevant to the issue of whether defendant


     1
        The proof further established that Xanax is a
Benzodiazepine.
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possessed a controlled substance, which was an element of each of
the charges against defendant of facilitating a sex offense with
a controlled substance (see Penal Law § 130.90; see generally
People v Fuller, 50 AD3d 1171, 1176 [2008], lv denied 11 NY3d 788
[2008]). Further, we find no abuse of discretion in County
Court's determination that the probative value of the
aforementioned evidence outweighed any improper prejudicial
effect (see People v Dorm, 12 NY3d 16, 19 [2009]).

      Next, defendant's constitutional right to confront
witnesses was not violated (see US Const 6th Amend). Defendant
contends that County Court erred in admitting into evidence the
reports prepared by Laurie Pasqualino, the forensic scientist who
analyzed the DNA data and linked defendant's DNA to the samples
from the rape kit, over defendant's objection that she relied
upon data compiled by lab technicians in the same lab who did not
testify at trial. We disagree. Pasqualino testified that she
analyzed raw data compiled by the nontestifying lab technicians
and that she did not rely on the opinions or interpretation of
anyone else in forming her scientific conclusions linking
defendant's DNA profile to the victim's rape kit, which
conclusions were contained in the reports that she authored (see
People v Brown, 13 NY3d 332, 336-337, 339-340 [2009]; see also
People v John, 27 NY3d 294, 301-302 [2016]). Pasqualino
testified and was subject to cross-examination, satisfying the
requirement that "analysts who write reports that the prosecution
introduces [into evidence at trial] must be made available for
confrontation" (Bullcoming v New Mexico, 564 US 647, 661 [2011];
accord People v Raucci, 109 AD3d 109, 121-122 [2013], lv denied
22 NY3d 1158 [2014]; compare People v John, 27 NY3d at 301).

      While the right of the accused to confront witnesses
precludes "surrogate testimony," i.e., the admission of one
person's testimonial statements through the in-court testimony of
a second person, no such surrogate testimony was introduced at
this trial and no Crawford violation occurred (see Bullcoming v
New Mexico, 564 US at 651-652, 657-658; Crawford v Washington,
541 US 36, 42, 68-69 [2004]; People v Raucci, 109 AD3d at
121-122; compare People v John, 27 NY3d at 297 [the "defendant's
Sixth Amendment right to confront the witnesses against him was
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violated when the People introduced DNA reports into evidence,
asserting that [the] defendant's DNA profile was found on the gun
that was the subject of the charged possessory weapon offense,
without producing a single witness who conducted, witnessed or
supervised the laboratory's generation of the DNA profile from
the gun or [the] defendant's exemplar"]). Pasqualino testified
that the lab technicians, who are under her supervision in the
lab, extract, quantify and amplify the DNA in the lab, and
another analyst then runs the genetic analyzer that creates the
raw data upon which she relies. She further explained that, in
this case, she then analyzed and interpreted that raw data and
rendered her scientific opinions and conclusions linking the DNA
evidence to defendant (compare People v John, 27 NY3d at 313
["nothing in this record supports the conclusion that the
analysts involved in the preliminary testing stages,
specifically, the extraction, quanti[fic]ation or amplification
stages, are necessary witnesses"]).

      There is no evidence in the record that any lab technician
or analyst who participated in the preliminary processing and
testing of this DNA evidence engaged in any data editing,
analysis, comparisons or interpretations of the evidence or
rendered any opinions regarding whether the data collected from
the rape kit matched defendant's DNA profile; likewise, there is
no proof that Pasqualino relied upon any such opinions or
conclusions drawn by others (see People v Rawlins, 10 NY3d 136,
144-146, 158-160 [2008]). Further, the technicians' compilation
of objective data was not accusatory and did not, without
Pasqualino's expert analysis and testimony, link defendant to
these crimes (see id. at 156, 159). Under these circumstances,
defendant's right of confrontation was not violated when
Pasqualino relied upon and made reference to data collected by
nontestifying lab technicians (see People v Raucci, 109 AD3d at
121-122).

      Defendant's ineffective assistance of counsel claim made on
his direct appeal is also without merit. Defense counsel's
decision not to object, during a bench trial, to various
characterizations of the evidence by the People during summation
did not deprive defendant of meaningful representation (see
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People v Tonge, 93 NY2d 838, 840 [1999]). Further, County Court
did not err in denying without a hearing defendant's CPL 440.10
motion, which alleged, among other things, ineffective assistance
of counsel based on non-record facts. To establish entitlement
to a hearing, a defendant must demonstrate that "non-record facts
set forth in [a] CPL article 440 motion . . . are material and
[that], if established, they would entitle him [or her] to
relief" (People v Mosley, 121 AD3d 1169, 1174 [2014], lv denied
24 NY3d 1086 [2014]; see People v Satterfield, 66 NY2d 796, 799
[1985]; CPL 440.30 [5]). "[I]t is incumbent on [a] defendant
[seeking to establish that he or she received ineffective
assistance of counsel] to demonstrate the absence of strategic or
other legitimate explanations for counsel's" alleged shortcomings
(People v Rivera, 71 NY2d 705, 709 [1988]; see People v Thiel,
134 AD3d 1237, 1240 [2015]).

      Defendant contends that, based on his perception that the
Trial Judge came to dislike one of his counsel (hereinafter local
counsel), counsel was ineffective for failing to move for the
recusal of the Judge or to move to withdraw his waiver of a jury
trial. Even if we were to conclude that defendant's proof in
support of the motion as to the Judge's opinion rose above mere
speculation and gave rise to plausible grounds upon which to make
a motion for recusal or a motion to withdraw defendant's waiver
of his right to a jury trial, the proof does not establish that
it was an objectively unreasonable strategy to proceed with the
bench trial. Defendant submitted no proof tending to suggest
that defendant would have fared better by proceeding either with
a bench trial before a different judge or with a jury trial
presided over by this Judge.2 Accordingly, defendant's proof
failed to establish that it was an objectively unreasonable
strategy to proceed with the bench trial and, thus, County Court
properly denied the motion without a hearing (see People v
Demetsenare, 14 AD3d 792, 793-795 [2005]; People v Shamblee, 222
AD2d 834, 835 [1995], lv denied 88 NY2d 994 [1996]).


    2
        Notably, the record establishes that local counsel
believed, at the time that defendant waived a jury trial, that a
jury would be particularly hostile to defendant.
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      We reach a similar conclusion with regard to defendant's
contention that counsel ought to have presented the testimony of
an expert witness on toxicology. Although this expert would have
testified to certain potentially exculpatory conclusions, defense
counsel's assessment that such testimony would "backfire[]" was
not objectively unreasonable. According to the expert, he
concluded that, at the relevant time, the victim had a
"diminished . . . ability to appreciate what interactions she was
involved in." Given that potentially inculpatory conclusion,
defendant failed to establish that it was not a legitimate
strategy for defense counsel to forgo calling that expert witness
to testify (see generally People v Venkatesan, 295 AD2d 635, 637-
638 [2002], lv denied 99 NY2d 565 [2002], cert denied 549 US 854
[2006]). Finally, defendant's waiver of his right to a jury
trial is no less knowing, voluntary or intelligent even if
counsel failed to disclose the particularities of the Judge's
alleged preference for local counsel prior to the waiver's
execution. Likewise, the waiver is not invalid based on the fact
that defendant was unable to predict that, after he waived his
right to a jury trial, the Judge would, in defendant's opinion,
eventually develop a less favorable view of local counsel. We
have considered defendant's remaining contentions and have
concluded that they are also without merit.

     Garry, Lynch, Devine and Aarons, JJ., concur.



     ORDERED that the judgment and order are affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
