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

512
KA 10-01490
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered March 25, 2010. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
and unlawfully dealing with a child in the first degree.

     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 sexual abuse in the first degree
(Penal Law § 130.65 [2]) and unlawfully dealing with a child in the
first degree (§ 260.20). In appeal No. 2, defendant appeals from an
order denying his motion seeking to vacate the judgment of conviction
pursuant to CPL 440.10 on the grounds that he was denied effective
assistance of counsel and that the grand jury proceedings were
impaired by prosecutorial misconduct.

     Addressing first appeal No. 2, we conclude that County Court
properly denied without a hearing that part of defendant’s CPL 440.10
motion alleging that he was denied effective assistance of counsel
“inasmuch as trial counsel, the only person who could have provided
any material information not already before the motion court, was
deceased” (People v Abuhamra, 107 AD3d 1630, 1630, lv denied 22 NY3d
1038 [internal quotation marks omitted]). With respect to the merits
of the CPL 440.10 motion, defendant contends that he was denied
effective assistance of counsel because trial counsel failed to
utilize, as part of his defense strategy, certain prior statements
made by a witness to the police that were allegedly inconsistent with
the witness’s trial testimony and because trial counsel failed to
request a limiting instruction after introduction of certain evidence
admitted under a Molineux exception (see People v Molineux, 168 NY
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                                                         KA 10-01490

264, 293). We see no basis for granting postconviction relief to
defendant on either ground.

     Under New York’s “flexible standard” of evaluating claims of
ineffective representation (People v Benevento, 91 NY2d 708, 712), so
long as “the evidence, the law, and the circumstances of a particular
case, viewed in totality and as of the time of the representation,
reveal that the attorney provided meaningful representation,”
counsel’s performance will not be found ineffective (People v Baldi,
54 NY2d 137, 147). “Isolated errors in counsel’s representation
generally will not rise to the level of ineffectiveness, unless the
error is ‘so serious that defendant did not receive a fair trial’ ”
(People v Henry, 95 NY2d 563, 565-566; see People v Flores, 84 NY2d
184, 188-189). Moreover, a defendant advancing an ineffectiveness
claim based on particular errors in counsel’s performance must
“demonstrate the absence of strategic or other legitimate
explanations” for the alleged deficiencies (People v Rivera, 71 NY2d
705, 709; see People v Taylor, 1 NY3d 174, 177). With respect to the
first ground asserted by defendant, even assuming, arguendo, that the
evidence of the witness’s prior statements to the police would have
been admissible, either to impeach that witness or on defendant’s
direct case, we conclude that defendant has not established that trial
counsel’s failure to utilize those statements demonstrated a lack of
strategy. Rather, we conclude that defendant’s contention reflects a
mere disagreement with trial strategy, which does not amount to
ineffective assistance of counsel (see People v Stepney, 93 AD3d 1297,
1298, lv denied 19 NY3d 968; People v Douglas, 60 AD3d 1377, 1377, lv
denied 12 NY3d 914).

     With respect to the second ground asserted by defendant, we
conclude that any error on trial counsel’s part in not requesting a
limiting instruction regarding the evidence of past uncharged crimes
does not rise to the level of ineffective assistance of counsel when
that error is viewed in light of trial counsel’s “entire
representation of defendant” (People v Oathout, 21 NY3d 127, 132; see
Flores, 84 NY2d at 188). We reject defendant’s related contention in
appeal No. 2 that the integrity of the grand jury proceedings was
impaired by the prosecutor’s failure to introduce the witness’s prior
statements to the police. Dismissal of an indictment on the ground
that “the integrity thereof is impaired and prejudice to the defendant
may result” (CPL 210.35 [5]) is an “exceptional remedy” (People v
Darby, 75 NY2d 449, 455). Dismissal is “limited to those instances
where prosecutorial wrongdoing, fraudulent conduct or errors
potentially prejudice the ultimate decision reached by the [g]rand
[j]ury” (People v Huston, 88 NY2d 400, 409), and “[t]he People have
broad discretion in presenting a case to the grand jury and need not
‘present all of their evidence tending to exculpate the accused’ ”
(People v Radesi, 11 AD3d 1007, 1007, lv denied 3 NY3d 760, quoting
People v Mitchell, 82 NY2d 509, 515; see People v Carr, 99 AD3d 1173,
1176, lv denied 20 NY3d 1010). Here, we conclude that the prior
statements made by the witness to the police were not “entirely
exculpatory” (People v Gibson, 260 AD2d 399, 399, lv denied 93 NY2d
924), and that the failure to present those statements to the grand
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                                                         KA 10-01490

jury “did not result in a needless or unfounded prosecution” (People v
Smith, 289 AD2d 1056, 1057, lv denied 98 NY2d 641 [internal quotation
marks omitted]).

     We reject defendant’s contention in appeal No. 1 that the court
erred in admitting evidence of defendant’s prior uncharged sexual
abuse of the victim which, according to the victim’s testimony, also
occurred while she was unconscious from alcohol intoxication. “The
general rule is that evidence of . . . uncharged crimes may not be
offered to show defendant’s bad character or his propensity towards
crime but may be admitted only if the acts help establish some element
of the crime under consideration or are relevant because of some
recognized exception to the general rule” (People v Lewis, 69 NY2d
321, 325; see Molineux, 168 NY at 293). Here, we conclude that the
evidence of uncharged crimes was admissible to establish intent and
motive under the first two exceptions specifically identified in
Molineux’s illustrative and nonexhaustive list (see id. at 293; see
also People v Alvino, 71 NY2d 233, 241-242; People v Calvano, 30 NY2d
199, 205-206). Specifically, the disputed evidence was relevant to
the issue whether defendant intended to commit the instant crime for
the purpose of sexual gratification (see Penal Law §§ 130.00 [3];
130.65 [2]), and to establish defendant’s motive in providing a large
quantity of alcohol to the victim. Consequently, “the evidence in
this case was not propensity evidence, but was probative of
[defendant’s] motive and intent to [sexually] assault his victim”
(People v Dorm, 12 NY3d 16, 19). Moreover, the evidence was also
admissible under a more recently recognized Molineux exception, i.e.,
to “provide[] necessary background information on the nature of the
relationship” between defendant and the victim (Dorm, 12 NY3d at 19;
see People v Leeson, 12 NY3d 823, 827) and thus, we conclude that the
court did not abuse its discretion in allowing the People to present
the evidence at issue (see People v Ventimiglia, 52 NY2d 350, 359-
360). Furthermore, we reject defendant’s contention in appeal No. 1
that the court abused its discretion in admitting the evidence of the
prior uncharged sexual abuse because a grand jury did not indict
defendant of that crime. Defendant has failed to provide any proof in
the record to support that claim and, in any event, there is no such
requirement for the admission of prior uncharged crimes under
Ventimiglia (see id. at 359-362; see also People v Richardson, 148
AD2d 476, 477).

     Finally, we agree with defendant and the People that the
certificate of conviction, which recites that defendant was convicted
of the crime of sexual abuse in the first degree occurring on or about
June 5, 2005, must be amended to reflect the correct date on which the
crime for which defendant was convicted occurred, namely, on or about
October 6-7, 2007 (see People v Young, 74 AD3d 1864, 1865, lv denied
15 NY3d 811; see also People v Brooks, 46 AD3d 1374, 1374).



Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
