People v. Dunham

Motion by the defendant pursuant to CPL article 440 to vacate the judgment rendered April 23, 2018, upon a verdict convicting the defendant of the crimes of sexual abuse in the first degree, criminal sexual act in the first degree and rape in the first degree. The Court has considered the following papers in support of the motion: notice of motion dated July 28, 2021 with exhibits A through G including affirmations of Harvey Fishbein, Esq. dated May 10, 2021, William E. Montgomery, III, Esq. dated May 12, 2021, and Joseph R. Brennan, Esq. dated June 30, 2021, and affidavits of Philip Pizzola sworn to November 23, 2020, Kelly Pizzola sworn to December 28, 2020, Amy McKay sworn to November 11, 2020, Marla Jones sworn to October 30, 2020, and Todd Dunham sworn to March 23, 2021 and a supplemental affidavit sworn to May 27, 2021, and a transcript of an interview with the victim occurring on September 12, 2016, as well as a memorandum of law dated July 28, 2021 and a reply memorandum dated November 24, 2021. In opposition to the motion, this Court has considered, the affirmation of Kenneth P. Borden, Jr., Esq. dated November 12, 2021 with exhibits 1 through 3 consisting of May 2, 2019 memorandum and order of the Appellate Division, Third Judicial Department, affirming the judgment (People v. Dunham, 172 AD3d 1462, 101 N.Y.S.3d 214 [3d Dept., 2019], lv. denied 33 NY3d 1068, 105 N.Y.S.3d 33, 129 N.E.3d 353 [2019]), portions of the trial transcripts, and a copy of the September 12, 2016 transcript of the interview of the victim. Additionally, this Court conducted an evidentiary hearing on February 1, 2022, at which all of the affiants except Montgomery testified, and reviewed the entire trial record consisting of over 900 pages plus exhibits. The defendant contends that the judgment should be vacated because his trial attorney’s performance constituted ineffective assistance of counsel in violation of his state and federal constitutional rights (CPL §44010[1][h]). Specifically, the defendant claims that his trial counsel: (1) failed to assert the affirmative defense of the defendant’s lack of knowledge of the victim’s physical helplessness; (2) failed to adequately prepare and use witnesses as well as distinguish fact witnesses from character witnesses; (3) failed to challenge evidence consisting of the SANE exam, DNA testing, and an email from the victim to the defendant accusing him of rape; (4) failed to impeach the victim with prior inconsistent statements; and (5) failed to request a jury instruction for lesser included offenses. A. “At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that * * * [t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States” (CPL §440.10[1][h]). “In deciding a CPL 440.10 motion, the trial court need not hold a hearing if the parties’ submissions are sufficient to render a determination (see CPL 440.30[1], [4]; People v. Satterfield, 66 NY2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985]; People v. Murray, 300 AD2d 819, 821, 752 N.Y.S.2d 442 [2002], lvs. Denied 99 NY2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003], 100 NY2d 564, 763 N.Y.S.2d 821, 795 N.E.2d 47 [2003]). Defendant must show that a hearing would establish material nonrecord facts that would entitle him to relief (see People v. Murray, supra at 821, 752 N.Y.S.2d 442).” (People v. Demetsenare, 14 AD3d 792, 793, 787 N.Y.S.2d 515, 516-17 [3d Dept., 2005]). “That the defendant’s chances of ultimate success in meeting his burden of proof with respect to the issues raised in his motion (see, CPL 440.30[6]) may be slight, or even remote, does not, by itself, furnish a basis to deny the motion without a hearing (see, CPL 440.30[5]; People v. Picciotti, supra )” (People v. Hughes, 181 AD2d 912, 913, 581 N.Y.S.2d 838, 839). If the Court does not summarily grant or deny the motion based upon the papers submitted on the motion, “it must conduct a hearing and make findings of fact essential to the determination thereof” (CPL §440.30[5], [7]). “[T]he defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion” (CPL §440.30[6]). “The right to the effective assistance of counsel at trial is a bedrock principle in our justice system. * * * Indeed, the right to counsel is the foundation for our adversary system. Defense counsel tests the prosecution’s case to ensure that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged. See, e.g., Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed.2d 158 (1932)” (Martinez v. Ryan, 566 U.S. 1, 12, 132 S.Ct. 1309, 1317, 182 L.Ed.2d 272 [March 20, 2012]). A defendant’s right to the effective assistance of counsel is guaranteed by both the United States and New York constitutions (U.S. Const. Amend. VI; NY Const., art. I, §6). The standards by which counsel’s performance is judged under federal and state law are only similar, not identical. For a defendant to prevail on a claim of ineffective assistance of counsel under Federal law, a defendant must show not only that counsel failed to provide ‘meaningful representation” (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674) but also that counsel’s failure resulted in prejudice to the defendant’s case (see People v. McDonald, 1 NY3d 109, 769 N.Y.S.2d 781, 802 N.E.2d 131). “‘The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Id., at 694, 104 S.Ct. 2052. ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Ibid. That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result. Richter, 562 U.S., at __, 131 S.Ct., at 791.” (Cullen v. Pinholster, 563 U.S. __, 131 S.Ct. 1388, 1403, 179 L.E.2d 557 [2011]). “[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. [footnote omitted] To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not entitle him. See Cronic, supra, 466 U.S., at 658, 104 S.Ct., at 2046.” (Lockhart v. Fretwell, 506 U.S. 364, 369-370, 113 S.Ct. 838, 842-843, 122 L.Ed.2d 180 [1993]). In People v. Benevento, supra at 712-713, 674 N.Y.S.2d at 632, 697 N.E.2d at 58 [1998]), New York law is not so stringent. Rather, “[o]ur state standard of meaningful representation, by contrast, does not require a defendant to ‘fully satisfy the prejudice test of Strickland, although we ‘continue to regard a defendant’s showing of prejudice as a significant but not indispensable element in assessing meaningful representation’ (Stultz, 2 NY3d at 284, 778 N.Y.S.2d 431, 810 N.E.2d 883), whose prejudice component focuses on the ‘fairness of the process as a whole rather than its particular impact on the outcome of the case’ (Benevento, 91 NY2d at 714, 674 N.Y.S.2d 629, 697 N.E.2d 584).” (People v. Caban, 5 NY3d 143, 155-156, 800 N.Y.S.2d 70, 79, 833 N.E.2d 213, 22 [2005]). “To prevail on his claim that he was denied effective assistance of trial counsel, defendant bears the well-settled, high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation (see, People v. Flores, 84 NY2d 184, 186, 615 N.Y.S.2d 662, 639 N.E.2d 19; People v. Benn, 68 NY2d 941, 942, 510 N.Y.S.2d 81, 502 N.E.2d 996). There is no precise definition of what constitutes ineffective legal representation, nor is there a particular standard applicable to every case (see, People v. Bennett, 29 NY2d 462, 466, 329 N.Y.S.2d 801, 280 N.E.2d 637). Rather, all of the evidence must be weighed in context and as of the time of representation to assess the alleged deficient representation.” (People v. Hobot, 84 NY2d 1021, 1022, 622 N.Y.S.2d 675, 676, 646 N.E.2d 1102, 1103 [1995]). In determining whether counsel provided meaningful representation in New York, “courts use a flexible approach in reviewing the totality of the circumstances, evidence and law as of the time of representation (see People v. Henry, 95 NY2d 563, 565-566, 721 N.Y.S.2d 577, 744 N.E.2d 112 [2000])” (People v. Demetsenare, supra, 14 AD3d at 794, 787 N.Y.S.2d at 517). In applying this standard, counsel’s efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective (see, People v. Satterfield, 66 NY2d, at 799, 497 N.Y.S.2d 903, 488 N.E.2d 834). The Constitution guarantees the accused a fair trial, not necessarily a perfect one (see, People v. Flores, 84 NY2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19; People v. Ford, 86 NY2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ["The phrase 'meaningful representation' does not mean 'perfect representation'"]; People v. Aiken, 45 NY2d 394, 398, 408 N.Y.S.2d 444, 380 N.E.2d 272 ["representation * * * need not be errorless"]; People v. Modica, 64 NY2d 828, 486 N.Y.S.2d 931, 476 N.E.2d 330 ["the test being 'reasonable competence', not perfect representation"]). That a defendant was convicted may have little to do with counsel’s performance, and courts are properly skeptical when “disappointed prisoners try their former lawyers on charges of incompetent representation” (People v. Brown, 7 NY2d 359, 361, 197 N.Y.S.2d 705, 165 N.E.2d 557). Accordingly, a reviewing court must avoid confusing “true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” (People v. Baldi, 54 NY2d, at 146, 444 N.Y.S.2d 893, 429 N.E.2d 400). Rather, “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for counsel’s alleged shortcomings (People v. Rivera, 71 NY2d, at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698; compare, People v. Flores, 84 NY2d 184, 615 N.Y.S.2d 662, 639 N.E.2d 19, supra with People v. Bennett, 29 NY2d 462, 465, 329 N.Y.S.2d 801, 280 N.E.2d 637, supra; People v. Droz 39 NY2d 457, 463, 384 N.Y.S.2d 404, 348 N.E.2d 880; People v. Gonzalez, 47 NY2d 606, 611, 419 N.Y.S.2d 913, 393 N.E.2d 987). Counsel’s performance should be “objectively evaluated” (People v. Angelakos, 70 NY2d 670, 673, 518 N.Y.S.2d 784, 512 N.E.2d 305) to determine whether it was consistent with strategic decisions of a “reasonably competent attorney” (People v. Satterfield, 66 NY2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834, supra; People v. Angelakos, 70 NY2d 670, 673, 518 N.Y.S.2d 784, 512 N.E.2d 305, supra). As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance (see, e.g., People v. Lane, 60 NY2d 748, 750, 469 N.Y.S.2d 663, 457 N.E.2d 769). (People v. Benevento, 91 NY2d 708, 712-13, 674 NYS2d 629, 632, 697 NE2d 584, 587 [1998]). “Defendant ‘bears the burden of establishing his claim that counsel’s performance is constitutionally deficient’ (People v. Nicholson, 26 NY3d 813, 831, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016]; accord People v. Baldi, 54 NY2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]) by ‘demonstrat[ing] the absence of strategic or other legitimate explanations for counsel’s alleged failure[s]‘ (People v. Wragg, 26 NY3d 403, 409, 23 N.Y.S.3d 600, 44 N.E.3d 898 [2015]; accord People v. Barboni, 21 NY3d 393, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013]).” (People v. Sposito, 30 NY3d 1110, 1111, 70 N.Y.S.3d 156, 93 N.E.3d 881 [2018]). Taking all of the defendant’s claims of ineffective assistance together, no showing has been made that the performance by the defendant’s trial attorney was deficient enough to constitute ineffective assistance of counsel under either the Federal or State standard. “[W]e have often explained that strategic decisions — including whether to hire an expert — are entitled to a ‘strong presumption’ of reasonableness. Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Defense lawyers have ‘limited’ time and resources, and so must choose from among ‘countless’ strategic options. Id., at 106-107, 131 S.Ct. 770. Such decisions are particularly difficult because certain tactics carry the risk of ‘harm[ing] the defense’ by undermining credibility with the jury or distracting from more important issues. Id., at 108, 131 S.Ct. 770. The burden of rebutting this presumption ‘rests squarely on the defendant,’ and ‘[i]t should go without saying that the absence of evidence cannot overcome [it].’ Titlow, 571 U.S. at 22-23, 134 S.Ct. 10. In fact, even if there is reason to think that counsel’s conduct ‘was far from exemplary,’ a court still may not grant relief if ‘[t]he record does not reveal’ that counsel took an approach that no competent lawyer would have chosen. Id., at 23-24, 134 S.Ct. 10.” (internal quotation marks omitted) (Dunn v. Reeves, 545 U.S. __, __, 141 S.Ct 2405, 2410, 210 LEd2d 812 [2021]). B. “‘The purpose served by a CPL article 440 motion is to inform a court of facts not reflected in the record and unknown at the time of the judgment. By its very nature, the procedure cannot be used as a vehicle for an additional appeal’ (People v. Spradlin, 188 AD3d 1454, 1460, 136 N.Y.S.3d 517 [2020] [internal quotation marks, brackets and citations omitted]).” (People v. Spradlin, 192 AD3d 1270, 1273, 143 N.Y.S.3d 155, 159 [3d Dept 2021], lv. denied, 37 NY3d 960, 147 N.Y.S.3d 545, 170 N.E.3d 419 [2021]). All but one of the defendant’s claims here involve matters contained in the trial record which could have been, and some of which were, raised on his unsuccessful appeal (People v. Dunham, 172 AD3d 1462, 101 N.Y.S.3d 214 [3d Dept 2019], lv. denied 33 NY3d 1068, 105 N.Y.S.3d 33, 129 N.E.3d 353 [2019]). Indeed, the defendant’s present complaint that his trial counsel was ineffective for failing to raise the affirmative defense that the defendant was unaware of the victim’s helplessness was directly addressed and found wanting by the appellate court. “Defendant also contends that he did not receive the effective assistance of counsel because his trial counsel did not raise the affirmative defense that defendant was unaware of the facts or conditions responsible for the victim’s incapacity (see Penal Law §130.10[1]). His theory of the case, however, was that the victim had not had much to drink, was not incapacitated and was a willing and active participant in the sexual encounter. The affirmative defense would demand proof of the victim’s intoxication that would have undercut defendant’s own testimony regarding her conduct earlier in the day. It is incumbent upon defendant to ‘demonstrate[ ] the absence of strategic or other legitimate explanations for counsel’s allegedly deficient conduct’ (People v. Duffy, 119 AD3d 1231, 1234, 990 N.Y.S.2d 346 [2014] [internal quotation marks and citations omitted], lv denied 24 NY3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014]; see People v. McRobbie, 97 AD3d 970, 972, 949 N.Y.S.2d 249 [2012], lv denied 20 NY3d 934, 957 N.Y.S.2d 693, 981 N.E.2d 290 [2012]), and it was sensible to avoid presenting an inconsistent defense that would “create[ ] a risk of juror confusion and ‘may well [have] taint[ed]…defendant’s credibility in the eyes of the jury’ (People v. Bradley, 88 NY2d 901, 903, 646 N.Y.S.2d 657, 669 N.E.2d 815 [1996], quoting People v. DeGina, 72 NY2d 768, 777, 537 N.Y.S.2d 8, 533 N.E.2d 1037 [1988]).[internal quotation marks omitted]” (People v. Dunham, supra, at 1466, 101 N.Y.S.3d at 220). To be sure, the defendant’s trial “‘counsel logically attempted to disprove an element of the charged crime’ — the element of physical helplessness — ‘a standard defense tactic’ (People v. Benevento, 91 NY2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], citing People v. Ellis, 81 NY2d 854, 597 N.Y.S.2d 623, 613 N.E.2d 529 [1993], and People v. Lane, 60 NY2d 748, 750, 469 N.Y.S.2d 663, 457 N.E.2d 769 [1983]).” (People v. Sposito, 37 NY3d 1149, 1151, 159 N.Y.S.3d 753, 754, 180 N.E.3d 1053, 1054 [2022]). So, too, did the appellate court dispense with the admissibility of the SANE evidence, finding that the testimony of the nurse examiner was properly allowed and admitted into evidence (Dunham, supra at 1465, 101 N.Y.S.3d at 219). Though not raised on his appeal, the issues of defense counsel’s failures to contest the admission of the DNA test and an email from the victim to the defendant accusing him of rape to impeach the victim with prior inconsistent statements in the September 2017 interview transcript, and to request a jury instruction for lesser included offenses, are all matters contained in the record. No claim is made here that the defendant’s appellate attorney provided ineffective assistance of counsel on the appeal, and no justification has been offered explaining the failure of that attorney to raise these issues on that appeal. “As such matters could have been — and in some instances were — raised upon defendant’s direct appeal, they are not properly the subject of a CPL article 440 motion (see People v. Spradlin, 192 AD3d at 1273, 143 N.Y.S.3d 155; People v. Young, 115 AD3d 1013, 1015, 983 N.Y.S.2d 120 [2014], lv denied 24 NY3d 1124, 3 N.Y.S.3d 765, 27 N.E.3d 479 [2015]).” (People v. Durham, 195 AD3d 1318, 1321, 149 N.Y.S.3d 697, 700 [3d Dept 2021], lv. denied, 37 NY3d 1160, 160 N.Y.S.3d 692, 181 N.E.3d 1120 [2022]; see, also, People v. Carter, 105 AD3d 1149, 1150, 963 N.Y.S.2d 419, 421-422 [3d Dept., 2013]). There is no merit to the defendant’s claim that his trial counsel was deficient in failing to contest the admission into evidence of the SANE exam, DNA test results, and the victim’s accusatory email, the defendant has failed to show that those decisions lacked a strategic basis. It can be detrimental to a defendant for defense counsel to object to the admission in evidence which counsel knows will ultimately be admitted by the court. No legal grounds from precluding the SANE exam and DNA test results from admission into evidence has been furnished. Strategically, and as the Appellate Division noted, it was the defendant’s contention at trial that the sexual encounter was consensual so the receipt into evidence of such information was not detrimental to the defense. Indeed, this evidence did not establish the requisite element of penetration for the rape charge as only the Y-STR DNA profile of a cutting from the crotch of the victim’s underwear was a match for the defendant and his paternal relatives.¹ C. “It is well settled that ‘[a] defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses’ (People v. Jenkins, 84 AD3d 1403, 1408, 923 N.Y.S.2d 706, lv. denied 19 NY3d 1026, 953 N.Y.S.2d 560, 978 N.E.2d 112; see People v. Mosley, 56 AD3d 1140, 1140-1141, 867 N.Y.S.2d 289; People v. Nau, 21 AD3d 568, 569, 800 N.Y.S.2d 584) (People v. Frazier, 87 AD3d 1350, 1351, 930 N.Y.S.2d 156).” (People v. Conway, 118 AD3d 1290, 1291, 988 N.Y.S.2d 337, 339 [4th Dept., 2014]). A defendant is entitled to a hearing even though it may ultimately be determined that trial counsel “made reasonably diligent efforts to [investigate and prepare]…witness[es]…or that there was a strategic reason for [his] failure to do so (see People v. Coleman, 10 AD3d 487, 488, 781 N.Y.S.2d 510)” (id.). The defendant testified at trial that he, Jones, and the victim went home after the reception ended, a drive which took 12-20 minutes, and arrived home at around 11:30 p.m.² Only after arriving home did the victim feel queasy and moved to the bathroom.³ More time passed while the victim was in the bathroom throwing up, during which the defendant assisted her with removing jewelry and partially removing her dress.⁴ The defendant poured himself a drink and joined Jones and the victim in the latter’s bedroom where they talked for about 15 minutes.⁵ He and Jones then went to their own bedroom where they got ready for bed but the defendant returned to the victim’s room.⁶ The defendant testified that he and the victim removed their clothing and engaged in foreplay.⁷ He told the jury that he was not ready for sex and “wanted to slow things down with just some more embracing, snuggling, close kind of feelings”⁸. The defendant fell asleep for an unknown period of time.⁹ At some point he woke up and he and the victim were in a spooning position.¹⁰ According to the defendant, he pulled her towards him, and she turned looking at him and said his name.¹¹ The defendant moved his hand to her vagina, she lifted her leg and he placed his leg between hers.¹² He rubbed his penis against her clitoris and she “was wiggling a little bit”¹³ The defendant testified that continued rubbing his penis against her vagina and anus but did not insert it into either area of her body.¹⁴ She rolled over and he performed oral sex on her, after which they returned to a spooning position and she said that she was done.¹⁵ They remained in bed together a short while and then the defendant returned to the bedroom he shared with Jones.¹⁶ At around 3:00 a.m. he heard a noise in the kitchen and got out of bed.¹⁷ He went to the kitchen and the victim was getting water.18 He asked her if he could help and she said “no”, she “was good”¹⁹. The defendant, Jones, and the victim went to the victim’s bedroom where they sat on the bed and talked for about 15 minutes, during which he put his arm around the victim and rubbed her back.²⁰ Here, the defendant’s claim of ineffective assistance of counsel consists of a failure to not only adequately prepare but to also use witnesses who observed the victim at the wedding reception at which the defendant, his paramour, and the victim were present during the evening hours immediately preceding the sexual encounter between the defendant and the victim. However, none of the witnesses who testified at the February 2022 hearing provided any substantial or compelling evidence to which they did not testify at the trial. Comparison of the testimonies of Amy McKay, Kelly Pizzola, and Phillip Pizzola at the trial and February 2022 hearing revealed that the only additional information not presented at trial consisted of their respective occupations. That Amy McKay is a registered nurse and Kelly Pizzola is a licensed pharmacist does not render their opinions of the victim’s physical condition at the wedding reception more credible or determinative of whether the victim was intoxicated to the point of stupor hours later when the alleged sexual assault occurred. The same can be said for Phillip Pizzola even though he is a director of medical imaging at a hospital, served as a radiologic technologist in the United States Army for eight years during which he was trained in observation skills and deployed to the Balkans, and stationed at West Point where he received an award for non-commissioned officer of the year. It is not that the backgrounds of these witnesses might not have lent additional credibility to their testimony. Rather, it is that there was never any dispute or question about whether the victim here was intoxicated at the wedding reception. She was not intoxicated, or at least not visibly so. The gravamen of the charges against the defendant was not the physical condition of the victim at the wedding reception but, rather, her condition hours after the reception ended. Thus, the proffered testimonies of Jones, McKay, and the Pizzolas, at the February hearing, which provided no significant new details from their trial testimonies, were of relevance only to the extent that they provided context to the subsequent events which formed the basis for the charges. Instead, the jury was confronted with the question of the victim’s physical condition at the time of the alleged criminal conduct which occurred hours after the reception ended. The testimonies of these witnesses did and does not address that issue. The jury did not have to disbelieve the testimonies of the defendant’s trial witnesses in order to find that the victim was physically helpless from intoxication when the defendant engaged in sexual conduct with her. The defendant has failed to prove that the alleged failure of trial counsel to prepare and use any or all of the defense witnesses at trial resulted in an associated failure to furnish relevant and material evidence to the jury The fact that the defendant’s trial counsel did not go over their expected testimonies prior to trial does not constitute ineffective assistance of counsel. Furthermore, trial counsel had a reasonable explanation for not doing so. As Phillip Pizzola testified at the February 2022 hearing, trial counsel told him, “I want you to be natural and not look like you’re rehearsed.” ²¹ Marla Jones’ complaint that she was not advised of her right to an attorney or prepared by trial counsel for her testimony at trial is without merit. The defendant’s trial counsel was only retained on or about December 21, 2017, when the defendant discharged his prior trial attorney. At that time, the trial was already scheduled to commence less than two months later on February 5, 2018. Jones was a more than likely prosecution witness. It is very precarious for a defense attorney to contact or provide any legal advice to a prosecution witness prior to trial lest (s)he be accused of tampering or intimidating a witness. D. The defendant’s criticism of his trial counsel for failing impeach the victim with her prior inconsistent statements made to a Michigan investigator is also without merit. Trial counsel did use the content of a video recording of her statement to the Michigan investigator to impeach the victim.²² To the extent that the defendant now claims that his trial counsel should have done more, “[h]indsight should not escalate what may have been a few tactical errors into ineffective assistance of counsel (see People v. Jackson, 52 NY2d 1027, 438 N.Y.S.2d 299, 420 N.E.2d 97, supra).” (People v. Baldi, 54 NY2d 137, 151, 444 N.Y.S.2d 893, 900, 429 N.E.2d 400, 407 [1981]). E. The defendant contends that trial counsel was ineffective for failing to discuss with the defendant possible lesser included offenses, confer with the defendant on the decision whether to request them, and ask the court to include such offenses in submitting the case to the jury. “In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense.” (CPL 300.50[1]). It has long been recognized that the purpose of the rule of CPL 300.50(2) is not only “to prevent the prosecution from failing where some element of the crime charged was not made out” (People v. Mussenden, 308 NY 558, 562, 127 N.E.2d 551, quoting People v. Murch, 263 NY 285, 291, 189 N.E. 220), but also ‘to empower the jury ‘to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence’” (People v. Mussenden, supra, quoting People v. Rytel, 284 NY 242, 245, 30 N.E.2d 578; see also People v. Green, 56 NY2d 427, 433, 452 N.Y.S.2d 389, 437 N.E.2d 1146 ["From the perspective of the accused, submission of a lesser included offense enables the jury to extend mercy by providing a less drastic alternative than the choice between acquittal and conviction of the offense charged"]). Stated otherwise, the purpose, from defendant’s point of view, of requiring the submission of a requested lesser included offense was to make the jury aware, in its consideration of the offense one level greater, that it could acquit defendant of the greater offense while retaining the option of convicting him of the lesser included offense to be considered thereafter (see People v. Boettcher, 69 NY2d 174, 180, 513 N.Y.S.2d 83, 505 N.E.2d 594 [" * * * we have recognized, as a practical matter, that the availability of a lesser included offense may affect a jury's deliberations"]). (People v. Doyle, 3 AD3d 126, 129, 770 N.Y.S.2d 318, 321 [1st Dept., 2004], lv. denied 2 NY3d 739, 778 N.Y.S.2d 465, 810 N.E.2d 918 [2004]). Penal Law §130.05 imposes as “an element of every offense defined in this article that the sexual act was committed without the consent of the victim” (subd. 1) and sets forth four factors from which lack of consent may be determined (subd. 2). Two of those factors are not present, namely, forcible touching and where the offenses charged are rape in the third degree or criminal sexual act in the third degree (Penal Law §130.05[2[a], [d]). The remaining two factors, incapacity to consent and where the offense charged is sexual abuse are present. The charges against the defendant are all premised upon a claim that the victim was incapable of consent²³ due to being physically helpless under Penal Law §130.05(3)(d). The other factor involves circumstances in which sexual abuse is charged and there are “circumstances, in addition to…. incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct” (Penal Law §130.05[2][c]). Turning first to the charge of rape in the first degree (Penal Law §130.35[2]), due to the ages of the defendant and the victim and the charges here being premised upon the victim’s physical helplessness, there was no possible lesser included offense which could have been submitted to the jury. At the hearing on the instant motion, both of the defendant’s experts opined that rape in the third degree (Penal Law §130.25[1], [3]), a class E felony, could have been charged as a lesser included offense of the indictment’s third count charging rape in the first degree based upon physical helplessness of the victim. This contention is without merit. A person is guilty of rape in the third degree when he engages in sexual intercourse with another person who either “is incapable of consent by reason of some factor other than being less then seventeen years old” (subd. 1) or does not consent “where such lack of consent is by reason of some factor other than incapacity to consent” (subd. 3). A charge of rape in the third degree due to incapacity to consent does not lie because the only applicable incapacity other than age which could have been supported by a reasonable view of the evidence was physical helplessness, and therefore the defendant could not have been convicted of the lesser crime without being convicted of the greater crime. A lesser included charge of rape in the third degree based upon lack of consent also would not have been proper since none of the factors besides incapacity to consent due to physical helplessness are present. Sexual abuse in the third degree (Penal Law §130.55), a class B misdemeanor (see People v. Fuller, 50 AD3d 1171, 854 N.Y.S.3d 594 [3d Dept., 2008]) could have been charged as a lesser included offense of both sexual abuse in the first degree (Penal Law §130.65[2]) for allegedly touching the victim’s vagina with his fingers, and criminal sexual act in the first degree (Penal Law §130.50[2]) for penetrating her anus with his penis. A person is guilty of sexual abuse in the third degree when he subjects the victim to sexual contact without her consent in that she did not expressly or impliedly acquiesce to the defendant’s conduct (see CJI2d[NY] Penal Law §130.55 [No Acquiescence]). A finding of guilt for this lesser offense would have been premised upon the jury’s determination that the victim here did not expressly or impliedly acquiesce in the sexual conduct. Sexual abuse in the second degree (Penal Law §130.60[1]) a class A misdemeanor, could not have been charged as a lesser included offense of either count because a requisite element of that offense is that the victim be “[i]ncapable of consent by reason of some factor other than being less then seventeen years old” (subd. 1) or is “[l]ess than fourteen years old” (subd. 2). Due to the specific facts of this case, the only applicable ground of incapacity to consent was physical helplessness and that factor, if proven and found by the jury, would have resulted in the defendant’s conviction for the greater crime charged in the indictment as well as the lesser offense. There are no other lesser included offenses for either count one or count two. Criminal sexual act in the second degree (Penal Law §130.45) requires proof that the victim was less than fifteen years of age or mentally disabled or mentally incapacitated, and therefore is not a lesser included offense. Criminal sexual act in the third degree (Penal Law §130.40) fails as a lesser included offense for the same reasons that preclude rape in the third degree from being a lesser offense of rape in the first degree in this case. Sexual abuse in the first degree (Penal Law §130.65) also is not a lesser included offense since the only applicable charge would have required physical helplessness as an element and the defendant could not have been found guilty of the lesser offense without being guilty of the greater offense. “As a general proposition, defense counsel’s failure to object to or request that the jury be charged as to a lesser included offense ‘is not the type of clear-cut and completely dispositive error that rises to the level of ineffective assistance of counsel’ (People v. Harris, 97 AD3d 1111, 1112, 948 N.Y.S.2d 512 [2012], lv. denied 19 NY3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] [internal quotation marks and citation omitted]). Rather, ‘whether to object to [or request] the submission of a lesser included offense is often a strategic decision that could reasonably be made either way. A defendant who thinks his [or her] chances of acquittal are small may welcome giving the jury an opportunity for a compromise verdict’ (People v. Turner, 5 NY3d 476, 483, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ); alternatively, a defendant may elect ‘not to request a lesser included offense in hopes of securing a complete acquittal’ (People v. Wicks, 73 AD3d 1233, 1236, 900 N.Y.S.2d 485 [2010], lv. denied 15 NY3d 857, 909 N.Y.S.2d 34, 935 N.E.2d 826 [2010]).” (People v. Briskin, 125 AD3d 1113, 1122, 3 N.Y.S.3d 200, 208 [3d Dept., 2015], lv. denied 25 NY3d 1069, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015]). As one of the defendant’s experts noted in his testimony, requesting a lesser included offense can invite a conviction. Also, requesting lesser included offenses here may have undercut his defense of the victim being a willing participant, thereby raising in the minds of the jurors that the defendant was aware of the victim’s physical helplessness but proceeded to take advantage of her notwithstanding her condition. The defendant’s testimony at the hearing that his trial counsel did not discuss lesser included offenses is curious since the trial record reflects that his trial counsel represented to the Court and in the defendant’s presence that he would be speaking to the defendant about such lesser offenses and would inform the Court the next morning on whether any requests therefor would be made.²⁴ When the morning came, and in the presence of the defendant, his trial attorney notified the Court as follows: THE COURT: All right. So are there any requests to add to the jury charge? I’ve heard Ms. Bowen’s yesterday. I’ll rule on that in a minute. MR. DUMAS: No further requests, your Honor. And we just stand on our argument with regards to the request from yesterday. THE COURT: And no lesser includeds requested? MR. DUMAS: No. I’ve talked to my client about that and left the decision to him, and he’s decided not to.”²⁵ F. It was the defendant own version of events which dictated trial counsel’s strategy. The jury did not credit the defendant’s account of what happened. Simply put and taking together all of the defendant’s claims of deficient representation, the defendant has failed to rebut the presumption that his trial counsel’s strategic decisions lacked a reasonable basis or that no competent lawyer would have chosen those strategies. Indeed, it is this Court’s assessment of trial counsel’s performance, both from having presided over the trial and revisited it by engaging in a complete review of the record, that the defendant received a vigorous, competent, and effective legal defense at trial and the alleged shortcomings of his trial counsel were not inadequacies or deficiencies at all. The motion is therefore denied. It is so ordered. Dated: August 24, 2022