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People v. Starr

Supreme Court of New York, Second Department

February 13, 2014

The People of the State of New York, respondent,
v.
Peter S. Starr, appellant. (Ind. Nos. 02-00920, 03-00209)

Mitchell Dranow, Sea Cliff, N.Y., for appellant.

David M. Hoovler, District Attorney, Goshen N.Y. (Robert H.Middlemiss of counsel), for respondent.

MARK C. DILLON, J.P. THOMAS A. DICKERSON L. PRISCILLA HALL LEONARD B. AUSTIN, JJ.

DECISION & ORDER

Appeals by the defendant from (1) a judgment of the County Court, Orange County (Rosenwasser, J.), rendered December 12, 2003, convicting him of criminal sexual act in the first degree, sexual abuse in the first degree (two counts), and assault in the third degree under Indictment No. 02-00920, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court also rendered December 12, 2003, convicting him of criminal solicitation in the second degree under Indictment No. 03-00209, upon a jury verdict, and imposing sentence.

ORDERED that the judgments are affirmed.

In order to prevail on a claim of ineffective assistance of counsel, the defendant must show that he was denied meaningful representation under the facts of the case (see People v Rivera, 71 N.Y.2d 705, 709; People v Baldi, 54 N.Y.2d 137, 146; People v Wicker, 229 A.D.2d 602; People v Sullivan, 153 A.D.2d 223). The defendant must also demonstrate the absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct (see People v Rivera, 71 N.Y.2d at 709; People v Windley, 70 A.D.3d 1060, 1061; People v Wolz, 300 A.D.2d 606).

Here, defense counsel conducted reasonably competent and thorough cross-examination of witnesses (see People v Clermont, 95 A.D.3d 1349, 1351). While the defendant claims that his counsel failed to call certain witnesses or failed to adequately prepare witnesses for trial, the proposed testimony of those witnesses would have been collateral or cumulative (see People v Townsend, 100 A.D.3d 1029; People v Howard, 92 A.D.3d 1219, 1220; People v Brighthart, 265 A.D.2d 189). Based on the circumstances of this case, the defendant has not demonstrated that he was deprived of meaningful representation (see People v Aiken, 45 N.Y.2d 394, 400; People v Howard, 92 A.D.3d 1219; People v Clermont, 95 A.D.3d at 1350).

In addition, there was no basis for defense counsel to request, or the trial court to order, a competency hearing pursuant to CPL 730.30 (see People v Morgan, 87 N.Y.2d 878; People v Keiser, 100 A.D.3d 927; People v Trent, 74 A.D.3d 1370).

The defendant raised no objection at trial to the admission into evidence of a tape recording between himself and a jailhouse informant. In any event, the recording was properly admitted into evidence through the foundation established by the testimony of a police detective who had listened to the conversation on a receiver at the time it was being recorded, and testified to its accuracy (see People v Ely, 68 N.Y.2d 520, 527).

The imposition of consecutive sentences was proper, as the defendant committed multiple offenses through separate and distinct acts (see Penal Law § 70.25[2]; People v Battles, 16 N.Y.3d 54, 57-58; People v Ramirez, 89 N.Y.2d 444, 451; People v Laureano, 87 N.Y.2d 640, 643; People v Simmons, 93 A.D.3d 739; People v Rodriguez, 49 A.D.3d 433, 435; People v Wynn, 35 A.D.3d 283, 284). The sentences imposed were not excessive (see People v Suitte, 90 A.D.2d 80).

The defendant's remaining contentions are without merit.

DILLON, J.P., DICKERSON, HALL and AUSTIN, JJ., concur.


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