| People v Stearns |
| 2010 NY Slip Op 02882 [72 AD3d 1214] |
| April 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BobbyStearns, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered March 4, 2009, upon a verdict convicting defendant of the crimes of rape in the firstdegree and assault in the third degree.
While defendant and his girlfriend (hereinafter the victim) were camping at a site in theTown of Warrensburg, Warren County, a verbal altercation ensued between the two and, whenthe victim attempted to leave, defendant grabbed her by the forearm and "backhanded" heracross the jaw. The victim fell to the ground and was dragged by defendant to a tent where heallegedly forced her to have sexual intercourse. The following day, the victim reported theincident and, based on the victim's statements as well as a recorded conversation between thevictim and defendant, defendant was arrested and subsequently indicted for rape in the firstdegree and assault in the third degree. Following a jury trial, he was convicted as charged andsentenced to an aggregate prison term of 12 years to be followed by 20 years of postreleasesupervision. He now appeals.
Defendant contends that the verdict convicting him of rape in the first degree is contrary tothe weight of the evidence because the victim's testimony was inconsistent and incredible andthere was no objective evidence to corroborate her claim that a rape had occurred. Since a [*2]different verdict on this charge would not have been unreasonable,we must " 'weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony' " (People v Bleakley, 69NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62[1943]; see People v Danielson, 9NY3d 342, 348 [2007]).
Here, the victim testified that, after striking her in the face, defendant dragged her by her arminto their tent, got on top of her, pulled her shorts down and, against her protests, penetrated hervagina with his penis. Although she attempted to get defendant off of her, she was unable tobecause he was leaning into her and she lacked strength due to the injuries sustained from thephysical altercation. According to the sexual assault nurse examiner who examined the victim,although there was no visible trauma to the victim's genital area, the victim withdrew in painupon examination of her posterior forchette.[FN1]She ultimately concluded that her observations and findings of the examination were consistentwith the victim's account of being sexually assaulted.
Contrary to defendant's contention, we do not find the victim's testimony to be inherentlyunbelievable and discern no basis upon which to disturb the jury's assessment of her credibility(see People v Nowinski, 36 AD3d1082, 1084 [2007], lv denied 8 NY3d 989 [2007]; People v Weber, 25 AD3d 919,921 [2006], lv denied 6 NY3d 839 [2006]). The various inconsistencies between thevictim's testimony and her prior statements did not relate to the elements of the crime, were fullydeveloped at trial and, ultimately, presented a credibility issue for the jury to resolve (see People v Scanlon, 52 AD3d1035, 1039 [2008], lv denied 11 NY3d 741 [2008]; People v Weber, 25AD3d at 921; People v Campbell,17 AD3d 925, 926 [2005], lv denied 5 NY3d 760 [2005]). Viewing the evidence ina neutral light and according great deference to the jury's credibility determinations (see People v Romero, 7 NY3d633, 643-644 [2006]; People vLopez-Aguilar, 64 AD3d 1037, 1037 [2009]), we conclude that the verdict of guilty onthis count was not against the weight of the evidence.
Defendant next asserts that his conviction for assault in the third degree was against theweight of the evidence, arguing that the credible evidence did not support a finding that thevictim suffered a physical injury.[FN2]"Physical injury" is defined as an "impairment of physical condition or substantial pain" (PenalLaw § 10.00 [9]). "[W]hile 'slight or trivial pain' is insufficient, the '[p]ain need not,however, be severe or intense to be substantial' " (People v Rivera, 42 AD3d 587, 588 [2007], lv denied 9NY3d 880 [2007], quoting People vChiddick, 8 NY3d 445, 447 [2007]; see People v Foster, 52 AD3d 957, 959 [2008], lv denied11 NY3d 788 [2008]). "A variety of factors are relevant in determining whether physical injuryhas been established, including the injury viewed objectively, the victim's subjective descriptionof the injury and [his or] her pain, and whether the victim sought medical treatment" (People v Dixon, 62 AD3d 1036,1039 [2009] [internal quotation marks and [*3]citations omitted],lv denied 12 NY3d 912 [2009]; see People v Chiddick, 8 NY3d at 447).
The victim testified that defendant backhanded her across the jaw with such force that shefell to the ground, was "disoriented" and was thereafter unable to bring herself to her feet. Sheexplained that her jaw "hurt really bad" and that she had trouble chewing for days after theincident. Upon seeking medical treatment at the hospital, she described the pain as a "7" on ascale of 1 to 10 and was advised to take pain medication. Furthermore, although an X ray of herjaw was unremarkable, medical personnel confirmed a contusion to her jaw. This evidence wassufficient to submit the issue of substantial pain to the jury and, under these circumstances, thejury's finding that the victim suffered a physical injury was not against the weight of theevidence (see People v Chiddick, 8 NY3d at 447-448; People v Rojas, 61 NY2d726, 727-728 [1984]; People v Rivera, 42 AD3d at 589; compare People vCheeks, 161 AD2d 657 [1990]).
Nor are we persuaded that defendant was denied the right to a public trial when CountyCourt excluded defendant's sister from the courtroom until her nine-year-old son, who was apotential witness, had testified. "While the right to a public trial is fundamental, it is notabsolute" (People v Baker, 58 AD3d 1069, 1070 [2009] [citations omitted]; seePeople v Ramos, 90 NY2d 490, 497 [1997], cert denied 522 US 1002 [1997];People v Kin Kan, 78 NY2d 54, 57 [1991]). " 'It has uniformly been held to be subject tothe inherent power of the court to preserve order and decorum in the courtroom, to protect therights of parties and witnesses, and generally to further the administration of justice' "(People v Hinton, 31 NY2d 71, 74 [1972], cert denied 410 US 911 [1973],quoting People v Jelke, 308 NY 56, 63 [1954]). To that end, "the exclusion of a witnessduring the testimony of another concerning events or facts in dispute is sanctioned as a device topreserve the truth-seeking function by preventing one prospective witness from being taught byhearing another's testimony" (People v Sayavong, 83 NY2d 702, 708 [1994] [internalquotation marks and citation omitted]; see e.g. Levine v Levine, 56 NY2d 42, 49-50[1982]; People v Smith, 111 AD2d 883, 883 [1985]).
Ultimately, the decision to exclude a spectator from the courtroom rests in the discretion ofthe trial court (see People v Kin Kan, 78 NY2d at 57; People v Baker, 58 AD3dat 1070). Here, defendant had listed his nine-year-old nephew, who was present at thecampground at the time of the alleged criminal conduct, as a potential witness. The Peopleexpressed serious concerns that, given the child's young age, his mother had the ability andopportunity to influence and/or "coach" her son as to what to say after hearing the People'switnesses. County Court also expressed concern that her presence could implicate defendant'sright to a fair trial by creating an avenue for the People to question the child as to whether hismother influenced his testimony and, as a result, raise such a suggestion to the jury. Givendefendant's close relationship with his sister, her control over the young child witness, and theresulting opportunity for her to influence her son's potentially critical testimony on a disputedevent, we cannot conclude that County Court abused its discretion in excluding the childwitness's mother from the courtroom until her son was called as a witness. Under these particularcircumstances, the mother's presence during the testimony of the People's witnesses "could haveseverely undermined the truth seeking function of the court, an overriding interest justifying thecourt's determination" (People v Ming Li, 91 NY2d 913, 917 [1998]).
Defendant's remaining contentions do not require extended discussion. The testimony of thevictim's former boyfriend that the victim disclosed the rape to him the morning after it hadoccurred was properly admitted under the prompt outcry exception to the hearsay rule since thereport was made at "the first suitable opportunity" (People v Perkins, 27 AD3d 890, 893 [2006], [*4]lvs denied 6 NY3d 897 [2006], 7 NY3d 761 [2006]; seePeople v McDaniel, 81 NY2d 10, 16 [1993]; People v Shelton, 307 AD2d 370, 371[2003], affd 1 NY3d 614 [2004]). Although defendant now argues that this witness'stestimony concerning the details of the rape exceeded the prompt outcry exception, this issue isunpreserved for our review inasmuch as he failed to object to the admissibility of this testimonyand did not move to strike it or seek a limiting instruction (see People v Shook, 294AD2d 710, 712 [2002], lv denied 98 NY2d 702 [2002]; People v Pace, 145AD2d 834, 836 [1988], lv denied 73 NY2d 894 [1989]). Likewise, defendant failed toproperly preserve for our review his assertion that certain testimony of a police investigatorconstituted inadmissible opinion testimony (see CPL 470.05 [2]; People vBolster, 298 AD2d 705, 705 [2002], lv denied 99 NY2d 555 [2002]). We decline toexercise our interest of justice jurisdiction with respect to these unpreserved issues (seeCPL 470.15 [3] [c]).
Finally, defendant's 12-year prison sentence was neither harsh nor excessive. Given theseriousness of his conduct, his lengthy criminal history—which includes three assaultconvictions—and the fact that the crimes for which he was convicted occurred while hewas on probation, we find neither an abuse of discretion nor extraordinary circumstanceswarranting modification of that sentence (see People v Lerario, 50 AD3d 1396, 1396-1397 [2008], lvdenied 10 NY3d 961 [2008]; People v Love, 307 AD2d 528, 533 [2003], lvdenied 100 NY2d 643 [2003]). Moreover, we find no basis to modify County Court'simposition of the maximum period of postrelease supervision authorized by law (seePenal Law § 70.45 [2-a] [f]; People v Witbeck, 299 AD2d 726, 726 [2002], lvdenied 99 NY2d 621 [2003]).
Cardona, P.J., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The nurse examiner explainedthat the posterior forchette is most often damaged during nonconsensual sex.
Footnote 2: Although defendant also arguesthat the proof on this element was legally insufficient, his general motion to dismiss at trial wasinsufficient to preserve this issue for our review (see People v Finger, 95 NY2d 894, 895[2000]; People v Hardy, 57 AD3d1100, 1101 [2008], lv denied 12 NY3d 784 [2009]).