People v Diaz

[*1] People v Diaz 2012 NY Slip Op 50811(U) Decided on May 9, 2012 Supreme Court, Bronx County Duffy, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2012
Supreme Court, Bronx County

The People of the State of New York,

against

Enrique Diaz, Defendant.



04843-1975



Megan Roberts, Esq.

Assistant District Attorney

Office of Robert T. Johnson

District Attorney, Bronx County

198 East 161st Street

Bronx, New York 10451

Colleen Duffy, J.

On or about August 6, 2011, Defendant filed a pro se motion, pursuant to CPL § 440.10, seeking to vacate his 1977 conviction for Rape in the First Degree, PL 130.35, Kidnapping in the First Degree, PL 135.25, and Coercion in the First Degree, PL 135.65.[FN1] Defendant contends that his rights pursuant to the "Confrontation Clause" of the Sixth Amendment to the United States Constitution were violated at his trial when the hospital record, including notations by a hospital resident who did not testify, was admitted into evidence. [*2]

Defendant also seeks to vacate his conviction on the grounds that his trial counsel was ineffective for failing to object to the introduction of the hospital record.

The People filed an opposition to Defendant's motion on February 8, 2012.

On or about March 20, 2012, Defendant filed an "Addendum and Response" to the People's response, which included an "Affidavit in Support." Defendant raises numerous new issues, alleging additional violations of his constitutional rights and additional ineffective assistance of counsel claims.

For the reasons set forth below, Defendant's motion to vacate his conviction is denied in its entirety.

I.PROCEDURAL HISTORY

On November 17, 1975, Defendant was indicted on charges of Rape in the First Degree, PL 130.35, Kidnapping in the First Degree, PL 135.25, and Coercion in the First Degree, PL 135.65. Defendant was indicted with three co-defendants as acting in concert with each other with respect to these charges.

A.The Trial

At Defendant's trial, Dr. Paul Fuchs testified on the People's direct case. Dr. Fuchs testified that he had first treated the young female complainant in his office and continued to treat her after the complainant's admission to Whitestone Hospital. Dr. Fuchs testified as to his own examinations of the complainant, and as to the hospital record of the complainant's stay.

Dr. Fuchs testified that the record of the complainant's stay at Whitestone Hospital was kept in the regular course of business. Tr. at 311. Dr. Fuchs reviewed the record at trial to refresh his recollection of his own observations of the complainant. Also, Dr. Fuchs testified that the record contained notations as to observations of the admitting physician at the hospital. Dr. Fuchs testified that he was required to read those, and if he agreed with them, to sign the record. Dr. Fuchs testified that he had so signed that record. Tr. at 328-29.

Defendant's trial counsel objected to the admission of the hospital record on the grounds that any part of the record relating to bruises, contusions, or cigarette burns should not be admitted as the trial testimony indicated that these injuries were inflicted by a co-conspirator prior to the Defendant's involvement in the incident, and that, therefore, that part of the hospital record should not be considered as to the "acting in concert" charges.

The trial judge, Honorable Jack Rosenberg, S.C.J., overruled the objection, but issued a limiting instruction to the jury as to their consideration of this part of the record. Tr. at 327. The hospital record was admitted into evidence, except that the patient's medical history and certain words were redacted.

Defendant's trial counsel also objected to Dr. Fuchs testimony regarding his observation that the complainant was suffering from "reactive anxiety depression and weight loss" as a result of the assault, on the grounds that such testimony was irrelevant and was being used to bolster the credibility of the complaining witness, thereby invading the province of the jury, as only they are to decide what happened. When the assistant district attorney pointed out that the defendants had conceded that Dr. Fuchs was an expert, Defendant's trial counsel stated, "As an emotion expert or as an internist?" but did not further object on grounds that Dr. Fuchs was not qualified to [*3]give such an opinion as to a psychiatric diagnosis of the complainant.

Justice Rosenberg overruled the objections of Defendant's trial counsel, with an instruction to the jury that they were not required to decide whether the complainant had a condition or not; the doctor's testimony related to the issue of the complainant's credibility. Tr. at 346.

Defendant was convicted after trial of all charges. On February 2, 1977, Justice Rosenberg sentenced Defendant to concurrent indeterminate terms of incarceration of 17-1/2 years to life for the Kidnapping charge and 8-1/3 years to 25 years for Rape; Defendant also was sentenced on the Coercion charge.

Defendant still is incarcerated pursuant to this sentence.

B.Defendant's Appeal

In 1977, Defendant appealed his conviction.

In his appeal, Defendant contended that trial counsel was ineffective for failing to move to sever the trials of defendant and his co-defendant (his brother) and for failing to move to dismiss the indictment. Defendant contended that certain physical evidence, including the hospital record detailing the extent of the complainant's physical injuries, "never would have gone into evidence" had counsel moved to sever the trials of defendant and his co-defendant or moved to dismiss the indictment.

In that appeal, Defendant also contended that: (1) trial counsel failed to properly object to the charge regarding "acting in concert;" (2) the defense was not properly presented, and two defense witnesses became corroborating witnesses for the prosecution; and (3) defendant's sentence was excessive.

On April 28, 1978, the Appellate Division, First Department, unanimously affirmed Defendant's conviction without opinion. People v. Diaz, 64 AD2d 1033 (1st Dept. 1978).

C.Federal Court Habeas Corpus Petition

In 1979, Defendant filed a habeas corpus petition in the United States District Court for the Southern District of New York. The court dismissed the petition. See Diaz v. Smith, 79-Civ-2618 (S.D.NY 1980).

D.The Current Collateral Attack on Defendant's Conviction

On or about August 6, 2011, Defendant filed the motion at issue here.

II.RELEVANT CASELAW

A.Federal Cases

In 2004, in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, the U.S. Supreme Court overturned longstanding precedent that had interpreted the Confrontation Clause to allow admission of the testimonial statements of absent witnesses based on a judicial determination of reliability. See Ohio v. Roberts, 448 U.S. 56, 66 (1980). In Crawford, the Supreme Court held that the Confrontation Clause required that testimonial statements of witnesses absent from trial may only be admitted where the declarant is unavailable and the defendant has had a prior opportunity to cross examine the declarant. 541 U.S. at 68.

In 2009, the Supreme Court addressed the scope of its Crawford determination in Melendez-Diaz, 557 U.S. 305, 129 S. Ct. 2527, holding that there is no Crawford [*4]exception which would permit introduction of affidavits of forensic analysts - prepared in connection with a criminal investigation - which determined that the substance recovered from a defendant was cocaine, where the affiants did not testify at trial.557 U.S. at 320-21. Such affidavits, the Court found, were testimonial in nature in that their "primary purpose" was to "establish or prove past events potentially relevant to later criminal prosecution." 557 U.S. at 321, quoting Davis v. Washington, 547 U.S. 813, 822 (2006). In Melendez-Diaz, the sole purpose of the affidavits was to provide "prima facie evidence of the composition, quality, and the net weight" of the analyzed substance, which purpose was printed on the affidavits themselves. Id.

In 2011, in two separate cases, the Supreme Court clarified the definition of a "testimonial statement." In Michigan v. Bryant, 131 S. Ct. 1143, the Supreme Court held that where the primary purpose of a statement is not to create a record for trial, but to respond to an ongoing emergency, such statement is not testimonial in nature and thus not the subject of a confrontation clause attack. 131 S. Ct. at 1155. In that case, the Court had determined that statements in police reports of a dying victim as to the description of his shooter and the location of the shooting had a primary purpose to enable police assistance to meet an ongoing emergency and were therefore not testimonial statements. Id.

In contrast, in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), the Supreme Court held that the report of a defendant's blood alcohol level was testimonial in nature and the defendant had a right to confront the analyst who actually prepared the report. The Court held that admission of testimony by another analyst, who did not perform or observe the reported test, violated defendant's right to confront the person who had created the report. Id. at 2716.

B.New York Cases

In 2011, the New York Court of Appeals also addressed the issue of whether the proffered evidence was testimonial in nature. The Court of Appeals held that where the primary purpose of a physician's inquiry to a patient is to determine the mechanism of injury in order to render a diagnosis and administer medical treatment, statements made by the patient to the physician are not testimonial in nature. People v. Duhs, 16 NY3d 405, 409-10 (2011).[FN2]

With respect to the issue of the admission of hospital records under the business records exception to the hearsay rule, in 2010, the Court of Appeals reiterated its position that hospital records were admissible under the business records exception when they reflect acts, occurrences or events that relate to diagnosis, prognosis or treatment. People v. Ortega, 15 NY3d 610 (2010)(references in victim's medical records to "domestic violence" and existence of safety plan admissible under business records exception; statements relevant to diagnosis and treatment, and domestic violence was part of diagnosis).

[*5]III.CONCLUSIONS OF LAW

A.Defendant's 440 Motion on Sixth Amendment Grounds is Denied.

As set forth below, Defendant's constitutional right to confront witnesses against him was not violated by the admission of the hospital record of the complainant, as the record at issue was not testimonial. Accordingly, Defendant's motion to vacate his conviction on this ground is denied.

In order to be testimonial in nature, a statement must have the primary purpose of establishing or proving facts or events which may be relevant to later criminal prosecution. Bullcoming, 131 S. Ct. at 2714; Melendez-Diaz, 557 U.S. at 329-30; Davis, 547 U.S. at 822.

In this case, the hospital record was not prepared with the primary purpose of proving facts relevant to the prosecution of a crime. At the trial, Dr. Fuchs testified that he was treating the complainant as a patient, that she first came to him at his private office, and that thereafter he admitted her to the hospital. Dr. Fuchs also testified that the hospital record was kept in the regular course of business. Tr. at 311. There is nothing in the record to indicate that the record was prepared for the purpose of proving facts relevant to the prosecution of a crime.

This is no less true because the report contains statements of non-testifying persons. See People v. Hall, 2011 NY Slip Op. 03193, *3-4 (1st Dept. 2011)(autopsy report admitted as business record despite fact that medical examiner who created report did not testify); People v. Freycinet, 11 NY3d 38, 42 (2008)(factual portions of autopsy report were not testimonial and could be introduced as a business record without doctor who performed autopsy); People v. Brown, 13 NY3d 332, 340-41 (2008)(DNA report containing "raw data" admitted as business record despite fact that analyst who prepared report did not testify). In short, Defendant's Sixth Amendment rights are not implicated. See Melendez-Diaz, 557 U.S. at 329-30 (business records generally admissible when they are not testimonial).

Contrary to Defendant's contention, the hospital record in this case is not like the forensic reports deemed testimonial by the Supreme Court in Melendez-Diaz, but rather, the record reflected occurrences and events that related to the diagnosis, prognosis and treatment of the complainant and was therefore properly admitted into evidence under the state's business records exception to the hearsay rule. People v. Ortega, 15 NY3d at 617; People v. Dagoberto, 16 AD3d 595, 595 (2d Dept. 2005)(statement that complainant "turned while man tried to stab him in the back" was properly admitted under business records exception because relevant to diagnosis and treatment of injuries).

As the hospital record was not testimonial, Defendant's Sixth Amendment rights were not at issue; the record was properly admitted under ordinary rules of evidence. Accordingly, Defendant's motion to vacate his conviction on the grounds that it was obtained in violation of his Sixth Amendment Confrontation Clause rights is denied.

B.Defendant's New "Constitutional Claims" are Denied.

The new constitutional claims raised by Defendant in his Addendum and Response lack merit and are also denied. As an initial matter, the Court will not [*6]consider new claims, raised for the first time in a reply, to which the People have never had an opportunity to respond. Dannasch v. Bifulco, 184 AD2d 415, 417 (1st Dept. 1992)(function of reply papers is to address arguments made in opposition to position taken by movant, not to introduce new arguments in support of, or new grounds for motion); People v. Adams, 30 Misc 3d 1228A (Sup. Ct., New York Co. 2011).

Even if the Court were to consider Defendant's new claims, such claims would be denied.

Defendant's contention that his equal protection rights under the Fourteenth Amendment to the United States Constitution were violated because his appeal was not decided is wrong. The First Department affirmed his conviction without opinion. That affirmation, even without a written opinion, is a decision. CPLR § 5522 (only where appellate court is reversing or modifying the decision below is it required to state grounds); Buzard, et al., New York Appellate Practice § 9.10 (2011).In addition, Defendant's bald contention that his rights pursuant to the Eighth Amendment to the United States Constitution were violated is unsupported by any facts or law. That claim also is denied.

B.Defendant's Claim of Ineffective Assistance of Counsel is Denied.

Defendant's claim that his plea should be vacated pursuant to CPL § 440.10(1)(h) because he was denied the right to effective assistance of counsel - on the basis that counsel should have objected to the admission of the hospital record - also lacks merit.[FN3]

The Sixth Amendment to the U.S. Constitution and Article 1, § 6, of the New York Constitution both protect a defendant's right to counsel at a criminal trial. To meet federal constitutional muster, an attorney's representation of a defendant must meet a minimum standard of effectiveness which is evaluated in a two-prong analysis as to whether counsel's performance was deficient and, if so, whether such deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). The New York Constitution requires, at a minimum, that a defendant be afforded "meaningful representation." People v. Baldi, 54 NY2d 137, 147 (1981); People v. Benevento, 91 NY2d 708, 713 (1998); People v. Saint Hilaire, 5 Misc 3d 1023 A, 1023A (Sup. Ct., New York Co. 2004). Here, the Court finds that Defendant has failed to provide sufficient facts to support a claim that he did not receive meaningful representation.

As an initial matter, the Court notes that Defendant's trial counsel did object to admission of the hospital record into evidence on the grounds that any references to bruises or cigarette burns should not be admitted as the trial testimony established that these injuries were inflicted prior to the Defendant's involvement and therefore were not properly evidence as to the "acting in concert" charges.

To the extent that Defendant contends that his trial counsel was ineffective for [*7]failing to object to admission of the hospital record on Sixth Amendment or hearsay grounds, such claim also lacks merit. As noted in Section III.A herein, the Court has determined that the hospital record was not testimonial in nature; defense counsel's failure to object to its admission on Sixth Amendment grounds was therefore not error. People v Caban, 5 NY3d 143, 152 (2005)(can be no denial of effective assistance of trial counsel from counsel's failure to make a motion or argument that has little or no chance of success); People v. Fields, 287 AD2d 577, 578 (2d Dept.)(counsel was not ineffective for failing to make motion which lacked merit), app. denied, 97 NY2d 681 (2001); People v. Perez, 133 AD2d 856 (2d Dept. 1987)(no error in failing to make motions which, based upon record presented, would inevitably have been denied).

In addition, as the hospital record was properly admitted under the business records exception to the hearsay rule, trial counsel did not err in failing to object on hearsay grounds. Williams, 309 NY 283, 287 (1955)(internal quotation marks and citations omitted); see also People v. Ortega, 15 NY3d at 617.

Moreover, as Defendant appealed his conviction without raising the issue of a hearsay objection, the Court is required to deny this motion pursuant to CPL § 440.10(2)(c).[FN4] See CPL 440.10(2)(c) (where sufficient facts appear on record to have permitted adequate appellate review of the issue raised upon the motion, and no such appellate review occurred due to defendant's unjustifiable failure to raise the issue on appeal, motion to vacate judgment on that ground must be denied).

Accordingly, Defendant's motion to vacate his conviction on the grounds of ineffective assistance of counsel is denied in its entirety.

IV.CONCLUSION

For the reasons stated above, Defendant's motion is dismissed without a hearing.[FN5] People v. Session, 34 NY2d 254, 256 (1974).

The Court considered the following in deciding the motion: Notice of Motion, undated, and Affidavit of Defendant in Support of Motion, filed on or about August 8, 2011; Affirmation of Megan Roberts, Esq., Assistant District Attorney, in Opposition to Motion, filed February 8, 2012; and Defendant's Addendum and Response, and Affirmation of Defendant in Support, dated March 19, 2012. [*8]

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

May 9, 2012

E N T E R:

_________________________

COLLEEN D. DUFFY

Justice of the Supreme Court

Footnotes

Footnote 1: Ordinarily, a motion to vacate will be made to the court which presided over the trial or which took a plea. See CPL § 440.10(1). However, in this case, the judge who presided over the trial in the underlying case (Hon. George D. Covington, Supreme Court Justice, see discussion, infra) is no longer a sitting judge in Bronx County, and therefore it is appropriate for this Court to hear this motion to vacate. People v. Skinner, 154 AD2d 216, 217 (1st Dept. 1990), app. denied, 76 NY2d 796 (1990); People v. Alexander, 6 Misc 3d 1026A, 2005 NY Slip Op 50194U, *4 (Sup. Ct., Bronx Co.), app. denied, 2005 NY App. Div. LEXIS 9332 (1st Dept. 2005).

Footnote 2: Earlier, in 2008, in People v. Rawlins, 10 NY3d 136, the Court of Appeals had looked at whether there was any "indicia of testimoniality," to aid in determining whether a business record was testimonial in nature, including whether the statement was prepared in a manner resembling ex parte communication, and whether the statement accused the defendant of criminal wrongdoing. Id. at 156.

Footnote 3: The new issues raised by Defendant in his Addendum and Response as to his attorney's representation, claiming that his attorney violated certain disciplinary rules in that he misrepresented the status of the case and neglected the case, are wholly unsupported by anything in the record before the Court. Accordingly, the Court will not address these claims.

Footnote 4: Counsel for co-defendant did object on hearsay grounds. However, defendant did not join in the objection and his claim is not preserved by the co-defendant's objection. People v. Buckley, 75 NY2d 843, 846 (1990)(counsel's failure to request jury charge not preserved by co-defendant's request); People v. Vargas, 236 AD2d 258 ((1st Dept. 1997)(claim of error in closing courtroom not preserved by co-defendant's objection); People v. Rogriguez, 223 AD2d 426, 426 (1st Dept. 1996)(claim that juror was improperly discharged not preserved by co-defendant's objection).

Footnote 5: Where, as here, a determination may be made on Defendant's motion to vacate his conviction on grounds of ineffective assistance of counsel based on the trial record and Defendant's submissions, a hearing to develop additional background facts is not necessary. People v. Satterfield, 66 NY2d 796, 799 (1985); Session, 34 NY2d at 256 (no hearing if facts don't create issue as to validity of conviction); People v. Brown, 160 AD2d 256 (1st Dept.)(to be entitled to full hearing on postconviction motion alleging ineffective assistance of counsel, defendant must show existence of nonrecord issues of fact), app. denied, 76 NY2d 785 (1990), and app. denied, 76 NY2d 789 (1990); People v. Shields, 205 AD2d 833, 835 (3rd Dept. 1994).