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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Harold VANDEBOGART, Appellant.


Decided: February 22, 2018

Before:  Garry, P.J., McCarthy, Mulvey, Aarons and Pritzker, JJ. Adam G. Parisi, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Chandler Delamater of counsel), for respondent.


Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered January 26, 2012, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child (three counts), sexual abuse in the second degree (two counts), endangering the welfare of a child (three counts), promoting a sexual performance by a child less than 17 years of age (eight counts) and possessing a sexual performance by a child less than 16 years of age (10 counts).

Defendant was charged in a multicount indictment stemming from multiple incidents in which he had sexual intercourse with underage children and texted digital pictures of such acts to another individual.  Prior to trial, defendant moved to suppress seized evidence on the basis that the search warrant was not sufficiently particular with respect to the depiction of his apartment.  After a suppression hearing, County Court (Drago, J.) denied the motion.  Following a jury trial, defendant was convicted of three counts of predatory sexual assault against a child, two counts of sexual abuse in the second degree, three counts of endangering the welfare of a child, eight counts of promoting a sexual performance by a child less than 17 years of age and 10 counts of possessing a sexual performance by a child less than 16 years of age.  County Court (Giardino, J.) thereafter sentenced defendant, as a second felony offender, to an aggregate prison term of 75 years to life.  Defendant now appeals.  We affirm.

Defendant first contends that the physical evidence seized as a consequence of the search of his apartment should have been suppressed.  In particular, defendant argues that the search warrant was facially deficient because it described the searched premises as a single-family house, as opposed to a two-family house.  We disagree.  “Generally, a warrant to search a subunit of a multiple occupancy structure is void if it fails to describe the subunit to be searched and only describes the larger structure” (People v. Atkins, 154 A.D.3d 1064, 1068, 63 N.Y.S.3d 532 [2017] [internal quotation marks and citations omitted] ).  Such warrant, however, will be deemed valid so long as the descriptions therein and the affidavits in support of it are “sufficiently definite to enable the searcher to identify the ․ places ․ that the Magistrate has previously determined should be searched” (People v. Nieves, 36 N.Y.2d 396, 401, 369 N.Y.S.2d 50, 330 N.E.2d 26 [1975] [citations omitted];  see People v. Thomas, 155 A.D.3d 1120, 1121, 64 N.Y.S.3d 702 [2017];  People v. Carpenter, 51 A.D.3d 1149, 1150, 857 N.Y.S.2d 344 [2008], lv denied 11 N.Y.3d 786, 866 N.Y.S.2d 613, 896 N.E.2d 99 [2008] ).  The requirement that the description be sufficiently particular “must be viewed from the standpoint of common sense” (People v. Wallace, 238 A.D.2d 807, 808, 656 N.Y.S.2d 513 [1997] [internal quotation marks and citation omitted], lvs denied 90 N.Y.2d 865, 661 N.Y.S.2d 192, 683 N.E.2d 1066 [1997] ).

The record discloses that defendant lived in the second-floor apartment of a multifamily house in Schenectady County, which was accessible by the door on the right when ascending to the top of the porch.  There was also a door at the end of the porch to the left, which accessed the first-floor apartment.  A gate on the porch also blocked access to the left side of the porch.  At the suppression hearing, a police detective testified that when he knocked on the right door, defendant “appear[ed] out of the left door” and was not wearing a shirt.  The detective also stated that there was one driveway for the house, there was one stairwell to go up onto the porch and that he was not made aware by defendant or the occupants of the first-floor apartment that the house was a multifamily house.  Although there were two mailboxes, defendant's name did not appear on either of them.  Based on his observations, the detective believed that the house was a single-family house and that an extra door was installed.

Although defendant testified at the suppression hearing that he advised the detective that he lived on the second floor, County Court (Drago, J.) did not give “full credence to his testimony” and found that it was “self-serving.”  The court credited the testimony of the detective and determined that it was reasonable, based upon the information known to him, to conclude that the house to be searched was a single-family house.  According deference to suppression court's factual findings and credibility determinations (see People v. Musto, 106 A.D.3d 1380, 1380, 966 N.Y.S.2d 263 [2013], lv denied 21 N.Y.3d 1007, 971 N.Y.S.2d 258, 993 N.E.2d 1281 [2013] ) and taking into account that hypertechnical accuracy and completeness of the description of the searched premises is not required, we find that any mistake in describing the premises to be searched as a single-family house did not render the search warrant invalid (see People v. Thomas, 155 A.D.3d at 1121, 64 N.Y.S.3d 702;  People v. Diaz, 11 A.D.3d 476, 477, 782 N.Y.S.2d 286 [2004], lv denied 3 N.Y.3d 756, 788 N.Y.S.2d 672, 821 N.E.2d 977 [2004];  People v. Otero, 177 A.D.2d 284, 285, 575 N.Y.S.2d 862 [1991], lv denied 79 N.Y.2d 862, 580 N.Y.S.2d 733, 588 N.E.2d 768 [1992] ).  As such, defendant's motion to suppress was properly denied (see People v. Mitchell, 57 A.D.3d 1232, 1233, 870 N.Y.S.2d 541 [2008], lv denied 12 N.Y.3d 760, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009];  People v. Lavin, 220 A.D.2d 886, 887, 632 N.Y.S.2d 338 [1995], lv denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264 [1995];  People v. Davis, 146 A.D.2d 942, 943–944, 537 N.Y.S.2d 93 [1989] ).  Defendant's argument that the search warrant was not supported by probable cause is unpreserved for review and, in any event, is without merit (see People v. Brooks, 152 A.D.3d 1084, 1085–1086, 59 N.Y.S.3d 816 [2017];  People v. Church, 31 A.D.3d 892, 894, 819 N.Y.S.2d 155 [2006], lv denied 7 N.Y.3d 866, 824 N.Y.S.2d 611, 857 N.E.2d 1142 [2006] ).

We reject defendant's assertion that County Court (Giardino, J.) erred in granting the People's motion in limine precluding him from questioning the 12–year–old victim about a statement she made to law enforcement that she was sexually intimate with other children of similar age.  Under the Rape Shield Law, evidence of a victim's sexual conduct in a case prosecuted under Penal Law article 130 is inadmissible unless one of the exceptions applies (see CPL 60.42;  People v. Scott, 16 N.Y.3d 589, 593–594, 925 N.Y.S.2d 384, 949 N.E.2d 475 [2011];  People v. Simonetta, 94 A.D.3d 1242, 1245, 942 N.Y.S.2d 270 [2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114 [2012] ).  Defendant failed to demonstrate that any of the exceptions was applicable (see People v. Alteri, 49 A.D.3d 918, 920, 853 N.Y.S.2d 204 [2008];  People v. Thompson, 27 A.D.3d 888, 890, 811 N.Y.S.2d 199 [2006], lv denied 6 N.Y.3d 853, 816 N.Y.S.2d 759, 849 N.E.2d 982 [2006] ).  Furthermore, in our view, County Court did not abuse its discretion in determining that the victim's statement was prejudicial and not relevant (see People v. Halter, 19 N.Y.3d 1046, 1049, 955 N.Y.S.2d 809, 979 N.E.2d 1135 [2012];  People v. Richards, 78 A.D.3d 1221, 1225, 909 N.Y.S.2d 841 [2010], lv denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010];  People v. Mann, 41 A.D.3d 977, 979, 839 N.Y.S.2d 247 [2007], lv denied 9 N.Y.3d 924, 844 N.Y.S.2d 179, 875 N.E.2d 898 [2007] ).  To the extent that defendant contends that the Rape Shield Law is inapplicable because the evidence at issue was evidence of a statement made by the victim about sexual conduct and not evidence of the victim's sexual conduct, such contention is not preserved for review inasmuch as it was not advanced before County Court (see People v. Simonetta, 94 A.D.3d at 1245 n. 2, 942 N.Y.S.2d 270).

We are not persuaded by defendant's argument that County Court committed reversible error by providing the jury with an annotated verdict sheet during the court's charge.  We note that defense counsel initially objected to the use of any annotations on the verdict sheet.  Although an annotated verdict sheet was ultimately utilized, defense counsel reviewed the annotations, requested that certain changes be made to the annotations, which County Court accepted, and consented to the final version of the annotated verdict sheet provided to the jury (see People v. Angelo, 88 N.Y.2d 217, 224, 644 N.Y.S.2d 460, 666 N.E.2d 1333 [1996];  People v. McCloud, 121 A.D.3d 1286, 1290, 995 N.Y.S.2d 269 [2014], lv denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015] ).1  We further conclude that the annotations did not run afoul of CPL 310.20(2) and that they were “appropriately included ․ so that the jury could distinguish the submitted counts” (People v. Lewis, 23 N.Y.3d 179, 187, 989 N.Y.S.2d 661, 12 N.E.3d 1091 [2014] ).  Nor do we find merit in defendant's argument that the annotations in the verdict sheet materially differed from the court's oral instructions.

To that end, defendant was not denied the effective assistance of counsel because his counsel ultimately consented to the annotations on the verdict sheet (see People v. O'Kane, --- N.Y.3d ––––, ––––, 2018 N.Y. Slip Op 00859, *2 [2018] ).  Furthermore, on this record, defense counsel's failure to argue that the search warrant was not supported by probable cause or to object to the admission of certain evidence did not constitute deficient representation (see People v. Garcia–Toro, 155 A.D.3d 1086, 1089–1090, 64 N.Y.S.3d 345 [2017];  People v. Ackerman, 141 A.D.3d 948, 950, 35 N.Y.S.3d 575 [2016], lv denied 28 N.Y.3d 1181, 52 N.Y.S.3d 708, 75 N.E.3d 100 [2017];  People v. Bowman, 139 A.D.3d 1251, 1253, 32 N.Y.S.3d 362 [2016], lv denied 28 N.Y.3d 927, 40 N.Y.S.3d 355, 63 N.E.3d 75 [2016] ).  Defendant's other grievances with how his counsel represented him concern trial strategies;  “[t]hat the strategy failed or that in hindsight a different strategy would have been better is insufficient to establish ineffective assistance” (People v. Vecchio, 228 A.D.2d 820, 821, 644 N.Y.S.2d 352 [1996];  see People v. Henry, 129 A.D.3d 1334, 1336, 14 N.Y.S.3d 507 [2015], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 92, 38 N.E.3d 838 [2015] ).  Defendant's remaining contentions, to the extent not specifically discussed herein, have been examined and lack merit.

ORDERED that the judgment is affirmed.


1.   The record reveals that the annotated verdict sheet was not given to the jury for its use during deliberations and that the jury was instead provided with a clean version of the verdict sheet.

Aarons, J.

Garry, P.J., McCarthy, Mulvey and Pritzker, JJ., concur.

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Docket No: 107330

Decided: February 22, 2018

Court: Supreme Court, Appellate Division, Third Department, New York.

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