| People v Higgins |
| 2007 NY Slip Op 08314 [45 AD3d 975] |
| November 8, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael D.Higgins, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Thomas F. Garner of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Schoharie County (Bartlett III,J.), rendered November 16, 2005, upon a verdict convicting defendant of the crimes of criminalsexual act in the first degree, forcible touching, unlawful imprisonment in the second degree andmenacing in the third degree.
Defendant and the victim were involved in a romantic relationship for several years.Following an incident in which defendant was thrown out of a bar where the victim worked, theyhad an altercation at the victim's residence during which defendant admittedly threw a glass ofwater in the victim's face and pushed her, causing her to fall to the floor. According to the victim,defendant also restrained her, placed his fingers inside her vagina, attempted to force her to haveintercourse with him and to perform oral sex, and, when she resisted, masturbated and ejaculatedon her face and head. Defendant later called the victim in a state of despondency and, when shewent to defendant's house to comfort him, he expressed his remorse over thealtercation—which he states ended after pushing the victim to the floor—and gavethe victim a gold bracelet [*2]as a present. Defendant traveled toMaine for a scheduled visit shortly thereafter but, according to the victim, he continued to callher and leave messages that were alternatively remorseful or threatening, prompting her tocontact the police.
Defendant was then arrested in Maine and brought back to Schoharie County, where he wasindicted on various counts related to the incident. Following trial, a jury convicted defendant ofcriminal sexual act in the first degree, forcible touching, unlawful imprisonment in the seconddegree, and menacing in the third degree, and County Court subsequently sentenced him to atotal of 12½ years in prison. Defendant appeals and we now affirm.
Initially, defendant asserts that the verdict was against the weight of the evidence, noting thatthe victim did not initially report the incident, include a description of the sexual assault in hertyped statement to police, or inform police that she went to defendant's residence after theincident. In addition, the victim destroyed evidence—pajamas that she states were rippedduring the attack and that she used to clean defendant's semen from her face. In reviewing theweight of the evidence, we must first determine whether "based on all the credible evidence adifferent finding would not have been unreasonable" (People v Bleakley, 69 NY2d 490,495 [1987]). If so, "then [we] must, like the trier of fact below, 'weigh the relative probative forceof conflicting testimony and the relative strength of conflicting inferences that may be drawnfrom the testimony.' If it appears that the trier of fact has failed to give the evidence the weight itshould be accorded, then [we] may set aside the verdict" (id., quoting People ex rel.MacCracken v Miller, 291 NY 55, 62 [1943] [citations omitted]). Here, in light of thevictim's destruction of evidence, inconsistent statements and failure to inform police that shewent to defendant's house immediately after the attack, we conclude that a different result wouldnot have been unreasonable. Nevertheless, given the victim's detailed testimony regarding theincident and her explanations regarding her behavior afterward, it cannot be said that the verdictshould be set aside.
With respect to the victim's failure to immediately report the event, she indicated that shewas afraid that no one would believe her until defendant left threatening voice-mail messages onher answering machine, including a message alluding to the incident. In addition, while thevictim's written statement did not describe the sexual assault, it contained a notation indicatingthat it was incomplete and she explained that she found it difficult to put the assault into wordsuntil she was able to speak to a domestic violence counselor. Finally, the victim also explainedthat she had thrown her pajamas in the garbage, which was taken from her house prior to hergoing to the police.[FN*]Viewing the evidence in a neutral light and according "[g]reat deference . . . to thefact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor," weconclude that the verdict is not against the weight of the evidence (People v Bleakley, 69NY2d at 495; see People vEdwards, 38 AD3d 1133, 1133 [2007], lv denied 9 NY3d 864 [2007]; [*3]People v Love, 307 AD2d 528, 530 [2003], lv denied100 NY2d 643 [2003]; People v Strong, 241 AD2d 754, 755-756 [1997], lvdenied 90 NY2d 943 [1997]).
We further reject defendant's argument that County Court erred in permitting the People toreopen their case, after defendant rested without presenting any witnesses, to offer testimony by afriend of the victim that the victim was "not herself" on the night of the incident. The evidencewas offered to contradict any inference that could be drawn from the testimony of OfficerRichard Bialkowski on cross-examination that the victim was in the company of police officersthat she knew socially but failed to report the incident to them. CPL 260.30 (7) states that "[i]nthe interest of justice, the court may permit either party to offer evidence upon rebuttal which isnot technically of a rebuttal nature but more properly a part of the offering party's original case."Contrary to defendant's argument that the testimony regarding the victim's demeanor relates onlyto a collateral issue, his challenges to the evidence presented against him focus almost entirely onthe conduct of the victim immediately following the alleged attack. Inasmuch as the victim'sconduct on the night of the incident was therefore a crucial issue, and the evidence was bothsimple to prove and did not prejudice defendant, we conclude that County Court properlyexercised its discretion in permitting the People to reopen their case (see People v Duplessis, 16 AD3d846, 847-848 [2005], lv denied 4 NY3d 853 [2005]; People v Miranda, 192AD2d 725, 725 [1993], lv denied 81 NY2d 1076 [1993]; see also People vHarris, 57 NY2d 335, 345-346 [1982], cert denied 460 US 1047 [1983]; cf.People v Whipple, 97 NY2d 1, 6-8 [2001]).
Defendant's remaining argument regarding the severity of his sentence has been consideredand found to be lacking in merit.
Cardona, P.J., Crew III, Carpinello and Kane, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant also relies upon thefact that a third person's DNA, in addition to DNA from defendant and the victim, was found ona towel that defendant allegedly used to clean himself after the attack. We note, however, that thepresence of a third person's DNA did not exclude defendant and, in any event, the identity of theassailant was not a contested issue.