Prosecutorial error; Improper vouching; People v Lowrey; Use of prearrest silence; People v Solmonson; Ineffective assistance; Failure to make a futile objection; SORA punishment & ex post facto challenge; People v Kiczenski; Judicial disqualification; People v Hill; Cumulative error; People v Dobek

The court held that none of defendant’s claims warranted reversal and affirmed the CSC II conviction and probationary sentence with SORA registration. On appeal, the court held that the detective’s testimony describing the forensic interview as consistent with the CPS report was not impermissible vouching. The “testimony, which did not comment on or provide an opinion on the credibility of the complainant, was not improper vouching.” The court also found that the prosecutor’s reference to defendant’s failure to meet for a prearrest interview did not violate the right to remain silent because “where a defendant has received no Miranda warnings, no constitutional difficulties arise from using the defendant’s silence before or after his arrest as substantive evidence unless there is reason to conclude that his silence was attributable to the invocation of the defendant’s Fifth Amendment privilege.” Addressing ineffective assistance, the court explained that objections would have been futile and that “trial counsel cannot be deemed ineffective for failing to raise a futile objection.” It also rejected defendant’s speculation about counseling records. The court further concluded that the trial judge’s remark in the bench trial that the testimony was “unrebutted” did not penalize defendant’s silence. As to SORA, the court held that the 2021 scheme “does not constitute punishment” for a CSC II offender and thus did not violate the prohibitions on cruel or unusual punishment or ex post facto laws. Finally, the court found no basis for reassignment to a different judge and noted that “absent the establishment of errors, there can be no cumulative effect of errors meriting reversal.”