| People v Welch |
| 2010 NY Slip Op 02440 [71 AD3d 1329] |
| March 25, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DraperWelch, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Linda Gafford of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Tompkins County (Rowley, J.),entered February 6, 2007, upon a verdict convicting defendant of the crimes of rape in the firstdegree, criminal sexual act in the first degree, burglary in the first degree, attempted rape in thefirst degree, assault in the second degree, robbery in the third degree and criminal possession of aweapon in the third degree.
The victim, who had fallen asleep because she felt ill, awoke to find a man whom she hadnever seen before in her apartment. After she repeatedly asked him to leave, the man grabbedher, covered her mouth and threatened to shoot her. He removed her pants and underpants,attempted sexual intercourse, struck her twice in the head and warned her to cooperate. He thensexually abused and raped her. Before the man left, he also demanded money and took over $600and some DVDs. After he left, the victim found a black pistol on the floor of her apartment andcalled 911. Based on her description of the man, the police were able to identify and arrestdefendant. At trial, defendant disputed the victim's claim that she had never seen him before, andhe admitted having sexual relations with her, but asserted that they were consensual. He alsotestified that the victim loaned him the DVDs and gave him the money to purchase illegal drugsfor her. The jury, by its verdict, rejected defendant's claims and convicted him of rape in the firstdegree, criminal sexual act in the first degree, burglary in the first degree, attempted rape in thefirst degree, assault in the second degree, robbery in the third degree and criminal possession of aweapon in the third degree. County Court sentenced defendant, as a [*2]second felony offender, to an aggregate term of 25 years in prison.
Of the issues preserved for our review, we initially address defendant's contention thatCounty Court erred in allowing a sexual assault nurse examiner called by the People to testifyregarding the question of whether the sexual contact here was consensual. The nurse opined thatshe had never found injuries similar to those of the victim (four lacerations of up to threequarters of an inch long on the posterior fourchette) in cases of consensual intercourse that shehad examined, and her review of the research literature indicated that physical injuries occurredin only 10% of consensual cases. Inasmuch as the witness was qualified to render such anopinion based upon her professional training and experience, and the issue of how likely it is thatconsensual intercourse causes injuries such as these is beyond the ken of the typical juror,County Court did not abuse its discretion in permitting this testimony (see People vCronin, 60 NY2d 430, 432-433 [1983]; People v Rogers, 8 AD3d 888, 892 [2004]; People v Morehouse, 5 AD3d925, 928-929 [2004], lv denied 3 NY3d 644 [2004]; People v Harris, 249AD2d 775, 776 [1998]).[FN*]
Nor did County Court err in admitting certain items of the victim's personal property intoevidence over defense counsel's objection that there were discrepancies between the initial andthe replacement chain of custody forms for those items. The use of two forms was adequatelyexplained and there is nothing in the record indicating that the items had been tampered with orwere not those of the victim (see People v Julian, 41 NY2d 340, 342-343 [1977]; People v Bellamy, 34 AD3d 937,939 [2006], lv denied 8 NY3d 843 [2007]). Further, any gaps in the chain of custody goto the weight of the evidence, not its admissibility (see People v Hawkins, 11 NY3d 484, 494 [2008]).
We also disagree with defendant's contention that his trial counsel was ineffective. In viewof the overwhelming evidence that defendant had sexual intercourse with the victim andpossessed her property, counsel reasonably pursued a strategy consistent with the claim that thevictim knew defendant and consented to his actions (see People v Ross, 43 AD3d 567, 570 [2007], lv denied 9NY3d 964 [2007]). In addition, counsel raised many successful objections in pursuit of thatdefense, conducted effective cross-examination of the victim and direct examination ofdefendant, and made appropriate motions. Moreover, there is nothing in the record suggestingthat the challenges and objections that defendant now faults counsel for not making would havebeen warranted or sustainable. Viewing the circumstances of the case in their totality, we areunwilling to say that defendant did not receive meaningful representation (see People v Hamms, 55 AD3d1142, 1145 [2008], lv denied 11 NY3d 925 [2009]; People v Jackson, 48 AD3d 891,893-894 [2008], lv denied 10 NY3d 841 [2008]; People v Murray, 7 AD3d 828, 831 [2004], lv denied 3NY3d 679 [2004]).
Nor are we persuaded that the sentence here was imposed in retaliation for defendant's [*3]refusal to enter a guilty plea. Given the invasive and violent natureof defendant's crimes in the victim's home, their traumatic impact on the victim, his lack ofremorse and his extensive criminal history including a prior felony and two prior sex offenseconvictions, we do not find any extraordinary circumstances or abuse of County Court'sdiscretion that would warrant a reduction of his sentence (see People v Beauharnois, 64 AD3d 996, 1001 [2009], lvdenied 13 NY3d 834 [2009]; People v Perkins, 62 AD3d 1160, 1162 [2009], lv denied13 NY3d 748 [2009]; People vMassey, 45 AD3d 1044, 1048 [2007], lv denied 9 NY3d 1036 [2008]).
We also find no merit in defendant's contention that there was insufficient evidence of theweapon possession charge, or that the People changed the theory of the burglary and robberycharges. Defendant's remaining contentions are unpreserved and, in any event, similarly withoutmerit (see e.g. People v Finger, 95 NY2d 894, 895 [2000]; People v Charleston,56 NY2d 886, 888 [1982]).
Mercure, J.P., Spain, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: While we decline to address, asunpreserved, defendant's argument that County Court improperly interfered with the questioningof the prosecution's witness, we caution the court to sparingly exercise its discretion to interveneso as to avoid even the appearance of being an advocate for one party by questioning a witnesson a key issue in a case (see People v Arnold, 98 NY2d 63, 67 [2002]).