People v. Ozuna

27 A.D.3d 339, 811 N.Y.S.2d 646

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 2006
• Status: Published

Opinions

Order, Supreme Court, Bronx County (John N. Byrne, J.), entered on or about April 29, 2004, which denied defendant’s CPL 440.10 motion to vacate a judgment of the same court (Lawrence Tonetti, J.), rendered October 10, 2001, convicting defendant, after a jury trial, of criminal contempt in the first degree, and sentencing him to a term of 3½ to 4 years, affirmed.

The court properly denied defendant’s CPL 440.10 motion without a hearing. Defendant claims in his motion (1) that the court improperly limited his cross-examination of the victim, and (2) that defense counsel failed to respond adequately to the court’s ruling. However, these contentions are reviewable on the basis of the record underlying the judgment and their resolution does not require resort to extrinsic evidence. Therefore, defendant’s failure to raise these-claims on direct appeal (see 309 AD2d 671 [2003], lv denied 1 NY3d 577 [2003]) forecloses any postconviction relief on these grounds (CPL 440.10 [2] [c]).

Even if, as defendant urges, his claims are not record-based, they would nevertheless be inappropriate for CPL article 440 consideration because, as defendant acknowledges, they rest on the victim’s unknown response to a question the trial court did not permit her to answer.

Defendant contends that the victim should have been allowed to answer the question the court disallowed—a question she had already been asked and had already answered on direct examination—as her answer bore on the issue of credibility. However, the victim had already testified on direct that she did not reach out to any members of defendant’s family to ask defendant to contact her. Defendant testified on direct that the victim did request that his father ask him to contact her. Therefore, the issue of the victim’s credibility was, on this record, before the jury. Notably, the jury resolved credibility issues in defendant’s favor when it acquitted him of the much more serious crime of rape in the first degree.

Turning now to the crime of which defendant was convicted, criminal contempt in the first degree, defendant maintains that because the victim wanted him to call her, he had a “legitimate purpose of communication” thereby negating an element of the crime. However, defendant’s making twelve calls to the victim, prohibited by court order, in the space of a mere three days, coupled with the fact that the victim reported these calls to the prosecutor, may well have, in the jurors’ minds, overwhelmed any supposed, originally legitimate purpose, even if any existed in the first place.

Defendant’s claim that his attorney should have called defendant’s father as a witness is indeed unsupported by an affidavit from the father, or by any other information establishing that the father could have provided material exculpatory testimony. Thus, a hearing was not warranted, and the court did not improvidently exercise its discretion in denying one on this ground (see CPL 440.30 [4] [b]; People v Ford, 46 NY2d 1021 [1979]; People v Session, 34 NY2d 254 [1974]; People v Rosario, 309 AD2d 537, 538 [2003], lv denied 1 NY3d 579 [2003]).

While we agree defendant’s request for a hearing should not have been denied on the ground that he failed to submit an affirmation from trial counsel explaining his trial tactics or strategy—and, in any event, the court’s order does not indicate that this was a basis to deny the motion—any explanation by trial counsel in such an affirmation could not have realistically included the victim’s unknown response to the question posed on cross. Accordingly, under these particular circumstances, the motion court properly exercised its discretion by summarily denying the article 440 motion since defendant’s speculation did not warrant a hearing. In any event, the motion was otherwise properly denied for the reasons stated herein. Concur—Marlow, J.P., Nardelli and Sweeny, JJ.