People v Urbina

People v Urbina 2012 NY Slip Op 06875 Decided on October 16, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 16, 2012
Gonzalez, P.J., Sweeny, Acosta, Renwick, Manzanet-Daniels, JJ.
8298 4398/09

[*1]The People of the State of New York, Respondent,

v

Cesar Urbina, Defendant-Appellant.




Richard M. Greenberg, Office of Appellate Defender, New
York (Rahul Sharma of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheryl
Feldman of counsel), for respondent.

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered August 24, 2010, as amended September 16, 2010, convicting defendant, after a jury trial, of attempted sexual abuse in the first degree and criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4 years and 3½ to 7 years, respectively, unanimously affirmed.

The court properly exercised its discretion in denying defendant's mistrial motion, made after the investigating detective stated, contrary to a prior ruling by the court, that he was currently assigned to the Sex Offender Monitoring Unit. The court's curative instruction made it clear that the
reassignment had no relevance to this case (see People v Santiago, 52 NY2d 865 [1981]), and there is no reasonable possibility that the jury could have been misled into thinking that defendant was being monitored as a sex offender at the time of his arrest.

Defendant did not preserve his challenges to testimony about the victim's disclosure of the attack to a workplace supervisor, and testimony by the victim about the psychological aftereffects of the crime, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. The report to the supervisor was admissible as a prompt outcry under the circumstances of the case (see People v McDaniel, 81 NY2d 10, 16 [1993]; People v Fabian, 213 AD2d 298 [1st Dept 1995], lv denied 85 NY2d 972 [1995]), and defendant's defense opened the door to the victim's brief and limited testimony about psychological injury. In any event, any error in receiving any of this evidence was harmless (see People v Crimmins, 36 NY2d 230 [1975]).

Defendant's ineffective assistance of counsel claims are generally unreviewable on direct appeal (see People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we find that defendant received effective
assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).

Defendant claims his trial counsel rendered ineffective assistance by failing to raise the issues that defendant raises on appeal concerning the prompt outcry and psychological trauma [*2]evidence. Defendant has not shown that counsel's failure to raise these issues fell below an objective standard of reasonableness, that raising these issues would have resulted in favorable rulings from the trial court or on this appeal, or that favorable rulings on one or both of these issues would have affected the outcome of the case.

Defendant also claims his counsel ineffectively represented him at sentencing in connection with a motion. We find that claim to be without merit. Defendant made a pro se CPL 330.30 motion, based primarily on matters outside the record, to set aside the verdict on the ground of ineffective assistance. Counsel acted properly by calling the court's attention to the potential conflict of interest and suggesting the appointment of a new attorney. The motion was both procedurally defective and meritless, and the court properly denied it without assigning new counsel.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 16, 2012

CLERK