PEOPLE v. THOMAS (2008)

 On appeal from a judgment convicting him upon a jury verdict of rape in the first degree (Penal Law § 130.35[1] ) and rape in the third degree (§ 130.25[2] ), defendant contends that he was denied effective assistance of counsel, based primarily on his contentions that defense counsel was not familiar with the contents of the victim's medical records and that defense counsel did not move to have certain portions of those records redacted.   Contrary to defendant's first contention, the record on appeal establishes that defense counsel was in fact familiar with the contents of the victim's medical records.   With respect to defendant's second contention, we conclude that defense counsel's failure to move to redact certain portions of the records did not deprive defendant of meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The medical records were admissible (see CPLR 4518[c] ), and the statements of the victim in those records indicating that she was raped or sexually abused were germane to her treatment (see People v. Bradley, 15 A.D.3d 840, 841, 788 N.Y.S.2d 767, lv. denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324;  see generally People v. Edwards, 261 A.D.2d 899, 900, 690 N.Y.S.2d 807, lv. denied 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937).   Although the statements of the victim in the medical records concerning the identity of the perpetrator were not germane to her treatment (see People v. Thomas, 282 A.D.2d 827, 828, 725 N.Y.S.2d 102, lv. denied 96 N.Y.2d 925, 732 N.Y.S.2d 642, 758 N.E.2d 668;  People v. Torres, 175 A.D.2d 635, 636-637, 572 N.Y.S.2d 269, lv. denied 78 N.Y.2d 1082, 577 N.Y.S.2d 246, 583 N.E.2d 958), we conclude that defendant “failed to satisfy the well-settled, high burden of showing that he was deprived of a fair trial and meaningful representation sufficient to warrant a reversal” based on defense counsel's failure to seek redaction of those statements from the medical records (People v. Flores, 84 N.Y.2d 184, 189, 615 N.Y.S.2d 662, 639 N.E.2d 19;  see People v. Orcutt, 51 A.D.3d 1404, 860 N.Y.S.2d 924).   Identity was not at issue in the trial, and thus any error in the admission of those portions of the medical records is harmless (see Thomas, 282 A.D.2d at 828-829, 725 N.Y.S.2d 102;  Torres, 175 A.D.2d at 636-637, 572 N.Y.S.2d 269;  see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   We have reviewed defendant's remaining contentions concerning the alleged ineffective assistance of counsel and conclude that defendant received meaningful representation (see generally Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Defendant failed to preserve for our review his contentions that the conviction is not supported by legally sufficient evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and that prosecutorial misconduct on summation warrants reversal (see People v. Johnston, 43 A.D.3d 1273, 1274-1275, 842 N.Y.S.2d 837, lv. denied 9 N.Y.3d 1007, 850 N.Y.S.2d 395, 880 N.E.2d 881;  People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800).   In any event, we conclude that those contentions lack merit.   Contrary to the final contention of defendant, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The testimony of the victim was not incredible as a matter of law, and the jury was entitled to credit that testimony (see People v. Reid, 281 A.D.2d 986, 722 N.Y.S.2d 848, lv. denied 96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666;  People v. Bell, 234 A.D.2d 915, 915-916, 652 N.Y.S.2d 448, lv. denied 89 N.Y.2d 1009, 658 N.Y.S.2d 247, 680 N.E.2d 621).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: