People v Bobrowsky (Shereen)

[*1] People v Bobrowsky (Shereen) 2009 NY Slip Op 50862(U) [23 Misc 3d 137(A)] Decided on May 4, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 4, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and SCHEINKMAN, JJ
2008-1216 W CR.

The People of the State of New York, Respondent,

against

Shereen Bobrowsky, Appellant.

Appeal from a judgment of the City Court of Yonkers, Westchester County (Michelle Graffeo, J., at trial; Michael A. Martinelli, J., at sentencing), rendered October 17, 2007. The judgment convicted defendant, upon a jury verdict, of criminal contempt in the second degree.

Judgment of conviction affirmed.

Defendant was convicted, upon a jury verdict, of criminal contempt in the second degree (Penal Law § 215.50 [3]) for having violated a Family Court order of protection which required that she stay away from the bedroom occupied by her mother, the complainant, in a home in which the defendant and defendant's brother also resided. Defendant's brother, a purported witness to events preceding and including the acts alleged to constitute the violation, did not testify at the trial. On appeal, defendant alleges that her trial counsel ineffectively represented her because, inter alia, counsel failed to request a missing witness charge with respect to the brother. Defendant also argues that, on summation, counsel improperly commented on the brother's absence as a witness without having obtained a missing witness charge, and failed to object to the complainant's testimony as to defendant's conduct which complainant considered violative of the order. For the reasons that follow, we affirm.

Defendant's claim that she was prejudiced by the trial court's failure to deliver a missing witness charge is not preserved for appellate review in the absence of a request for such a charge (People v Russell, 209 AD2d 650, 651 [1994]; see also People v Dell, 11 AD3d 631, 632 [2004]; [*2]People v Buster, 245 AD2d 460, 461 [1997]). Moreover, it is well settled that a missing witness charge "is not a necessary predicate to comment on the failure of a party to produce relevant evidence" (People v Smith, 190 AD2d 522 [1993]; see e.g. People v Zillinger, 179 AD2d 382 [1992]), and even where the criteria for the charge are not met, a defendant "may nonetheless try to persuade the jury to draw inferences from the People's failure to call an available witness with material, noncumulative information about the case" (People v Williams, 5 NY3d 732, 734 [2005]).

With respect to the complainant's testimony regarding defendant's behavior in the period immediately prior to the order's violation, particularly as to conduct the complainant deemed violative of the order, most of that testimony was received without objection. Insofar as defendant's claim is preserved, we find no error. Proof of a defendant's prior abusive or threatening behavior towards a complainant is admissible where "relevant to enable the jury to understand the defendant's relationship with the complainant, to explain the issuance of an order of protection, and to establish the defendant's motive and intent in the commission of the charged crime[]" (People v Hanson, 30 AD3d 537, 538 [2006]; see People v Till, 87 NY2d 835, 837 [1995]; People v Gorham, 17 AD3d 858, 860 [2005]; People v Melendez, 8 AD3d 680, 681 [2004]; People v Ben-Ezra, 19 Misc 3d 139[A], 2008 NY Slip Op 50892[U] [App Term, 9th & 10th Jud Dists 2008]; People v MacShane, 17 Misc 3d 78, 81-82 [App Term, 9th & 10th Jud Dists 2007]). Any prejudice attendant upon the complainant's unobjected to commentary with respect to conduct she considered to violate the order of protection was dissipated by the court's clear instruction that, to convict, the jury must find beyond a reasonable doubt that defendant committed the acts alleged in the accusatory instrument to constitute the offense, and we must presume that the jury followed that instruction (People v Berg, 59 NY2d 294, 299-300 [1983]; People v Moghaddam, 56 AD3d 801, 803 [2008]; People v Hardy, 22 AD3d 679, 680 [2005]).

Our review of defendant's challenge to the effectiveness of trial counsel is limited to the record presented because defendant made no motion pursuant to CPL 440 to permit evidentiary development of matters not revealed in the trial record but which usually are essential to an evaluation of counsel's representation, such as strategy, counsel's knowledge of matters not litigated at trial, and the dynamics of counsel's interactions with his or her client (see e.g. People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998, 1000 [1982]; People v Polanco, 13 AD3d 100, 101 [2004]). "To the extent that the existing record permits review" (People v Lopez, 2 AD3d 234 [2003]), under the "flexible" approach applied to claims based on the State constitution (People v Benevento, 91 NY2d 708, 712 [1998]), and considered as a whole (People v Henry, 95 NY2d 563, 566 [2000]), counsel's representation was "meaningful" (People v Baldi, 54 NY2d 137, 147 [1981]). Defense counsel exhibited a grasp of the facts and applicable law, obtained a favorable pre-trial ruling limiting the scope of testimony as to prior bad acts, and offered a persuasive opening statement that revealed well thought out defense theories later developed through the effective examination of witnesses and to which he returned on summation. The election to forgo a request for a missing witness charge was not per se ineffective in that defendant's brother's prospective testimony might well have been deemed merely cumulative, and a successful request might have provoked the prosecution to seek to present testimony reinforcing the damaging testimony of the complainant (see People v Parilla, 158 AD2d 556, 557 [1990]). [*3]

We note that mere disagreements with strategies and tactics do not suffice to establish the ineffectiveness of counsel (People v Koufomichalis, 2 AD3d 987, 989 [2003]; People v Morrison, 288 AD2d 494 [2001]; People v Schreter, 252 AD2d 563 [1998]), nor may such a claim be premised upon a showing that such strategies and tactics were unsuccessful, absent "true ineffectiveness" (People v Rose, 307 AD2d 270, 271 [2003]). Accordingly, the record does not support an inference that an "absence of strategic or other legitimate explanations for counsel's alleged shortcomings" (Benevento, 91 NY2d at 712 [internal quotation marks and citation omitted]) denied defendant a fair trial (id. at 713).

In view of the foregoing, the judgment of conviction is affirmed.

Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: May 04, 2009