| People v Wicks |
| 2010 NY Slip Op 03811 [73 AD3d 1233] |
| May 6, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark L.Wicks, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered January 28, 2009, upon a verdict convicting defendant of the crimes of sexual abuse inthe first degree and petit larceny.
The victim awoke in the early morning hours to find a strange man in her bed, with his handinside her underwear and touching her vagina. After the man finally obeyed the victim's demandsthat he leave, she called her mother, who arrived and called the police. When a police officerarrived shortly thereafter, defendant was the only person on the street and matched thedescription of the intruder that the officer had been given. The officer placed defendant inhandcuffs and put him in the back of his marked patrol car, then drove approximately 50 feet tothe victim's home. The victim accompanied the officer to his car and identified defendant as theintruder. She later informed the police that $105 was missing from her purse.
After trial on a three-count indictment, the jury acquitted defendant of burglary in the seconddegree but convicted him of sexual abuse in the first degree and petit larceny. Following ahearing, County Court determined that defendant was a persistent felony offender and sentencedhim to 22 years to life in prison for the crime of sexual abuse in the first degree, along with aconcurrent one-year sentence for petit larceny. Defendant appeals.[*2]
Defendant's convictions are based upon legally sufficientevidence and are supported by the weight of the evidence. The only element of sexual abuse inthe first degree that is at issue is whether the victim was "physically helpless" at the time that thesexual contact occurred (Penal Law § 130.65 [2]). Although the defense attempted to showthat the victim awoke when defendant entered her bed, and was therefore awake when the sexualcontact began, the victim clearly testified that when she awoke, the stranger's hand was alreadyinside her underwear, touching her vagina and attempting to put a finger inside her. As she wasasleep when the sexual contact began, she was incapable of consenting because she wasphysically helpless (see People vBush, 57 AD3d 1119, 1119-1120 [2008], lv denied 12 NY3d 756 [2009]). Hertestimony constituted legally sufficient evidence to support the charge, and the jury's finding wasnot against the weight of the evidence.
Regarding the petit larceny charge, the victim testified that she had approximately $105 inher purse when she went to bed. The only other people in the apartment between that time andwhen she noticed that the money was missing were her boyfriend, her mother and defendant. Herboyfriend and mother each testified that they did not take any money from the victim's purse.This circumstantial evidence was legally sufficient to support the inference that defendant stolethe victim's money while he was in her apartment. Although defendant's employer testified thathe paid defendant approximately $168 in cash several hours before this criminal incident, thepolice recovered $203 in defendant's pockets. The jury could infer that defendant spent some ofthe money that he received from his employer, then stole money from the victim, leaving himwith some of his pay and the stolen money in his pockets. While another verdict would not havebeen unreasonable, giving deference to the jury's interpretation of this evidence and consideringthe rational inferences to be drawn from the testimony, the conviction for petit larceny was notagainst the weight of the evidence (seePeople v Brisson, 68 AD3d 1544, 1546 [2009]).
County Court properly permitted the People to introduce evidence regarding the showupidentification of defendant. Showup identifications are permissible where they are "reasonableunder the circumstances—that is, when conducted in close geographic and temporalproximity to the crime—and the procedure used was not unduly suggestive" (People vBrisco, 99 NY2d 596, 597 [2003]; see People v Harris, 64 AD3d 883, 883 [2009], lv denied13 NY3d 836 [2009]). Here, the officer located defendant approximately 50 feet from thevictim's home. The showup occurred within half an hour after the incident, and within minutesafter the police were notified. Defendant's placement in a marked police car in handcuffs "didnot, as a matter of law, render the procedure unduly suggestive" (People v Harris, 64AD3d at 884; see People v Mathis,60 AD3d 1144, 1146 [2009], lv denied 12 NY3d 927 [2009]). Although defendantwas handcuffed, the hearing testimony indicated that the handcuffs were not visible through thecar window and nothing about the process was unduly suggestive. Under the circumstances, thecourt correctly denied defendant's motion to suppress the victim's identification of defendantbecause the showup was entirely reasonable.
County Court did not err in partially granting the People's request to admit evidence ofdefendant's prior convictions. The People sought to admit six of defendant's prior convictions,but the court only permitted them to admit one, attempted burglary in the third degree.Defendant's contention that the court erred in permitting the People to admit this conviction ontheir case-in-chief is academic, as the People never did so. Defendant also contends that thecourt's ruling impacted his decision not to testify. The court did not err in permitting use of thisone conviction to address defendant's intent in entering the apartment, considering thatdefendant's intent was clearly raised as a defense and was the most centrally disputed issue at[*3]trial (see People v Carter, 50 AD3d 1318, 1321-1322 [2008], lvdenied 10 NY3d 957 [2008]; People v Wright, 5 AD3d 873, 875 [2004], lv denied 3NY3d 651 [2004]).
Defendant alleges that counsel was ineffective based on the failure to request an intoxicationcharge and a lesser included offense charge for the sexual abuse count. We disagree. Theevidence was insufficient to support an intoxication charge. A police officer testified that hesmelled an odor of alcohol on defendant's breath, but there was no evidence that defendant wasintoxicated. While counsel argued to the jury that defendant mistakenly entered the wrongapartment because he was drunk, counsel cannot be faulted for failing to request a charge thatthe evidence would not necessarily support (see People v Crandall, 285 AD2d 742, 743[2001], lv denied 97 NY2d 655 [2001]; cf. People v Green, 31 AD3d 1048, 1051 [2006], lv denied7 NY3d 902 [2006]). Regarding defendant's other allegation of ineffectiveness, counsel couldhave strategically determined not to request a lesser included offense in hopes of securing acomplete acquittal (see People vSingh, 16 AD3d 974, 978 [2005], lv denied 5 NY3d 769 [2005]; People vCrandall, 285 AD2d at 743). He successfully pursued that strategy on the burglary charge,where he could have, but did not, request a charge for the lesser included offense of criminaltrespass in the second degree (see Penal Law § 140.15). We will not second-guesscounsel's tactical decisions if there was a possible legitimate basis for counsel's actions (see People v Cherry, 46 AD3d1234, 1238 [2007], lv denied 10 NY3d 839 [2008]). Considering counsel's overallrepresentation, including obtaining an acquittal on the most serious charge, defendant receivedmeaningful assistance from counsel (see People v Green, 31 AD3d at 1051).
County Court did not abuse its discretion in sentencing defendant. Defendant admitted thathe was convicted of four prior felonies and was incarcerated for more than one year on each,rendering him a persistent felony offender (see Penal Law § 70.10 [1]). The courtthen had to determine whether "the history and character of the defendant and the nature andcircumstances of his criminal conduct indicate that extended incarceration and life-timesupervision will best serve the public interest" (Penal Law § 70.10 [2]).[FN*]Evidence at the hearing showed that since 1980 defendant had been arrested 69 times andconvicted over 40 times, including four felony convictions. His parole was revoked three times.The only years in which defendant did not have contact with police was when he wasincarcerated. Rather than being an annoyance or mere thorn in the side of local police, as defensecounsel characterized him, defendant's character and the nature and circumstances of hiscriminal conduct indicate that he warranted more serious punishment. Considering defendant'sextensive criminal history, refusal to admit any wrongdoing in this case, lack of remorse and hisstatements blaming the victim, we cannot say that the court abused its discretion in sentencingdefendant to 22 years to life in prison (see People v Andre, 232 AD2d 884, 885-886[1996], lv denied 89 NY2d 918 [1996]; see also People v Massey, 45 AD3d 1044, 1048 [2007], lvdenied 9 NY3d 1036 [2008]). This lengthy period of [*4]incarceration does not constitute punishment for taking the matterto trial just because the sentence was much more severe than any sentence associated with theplea offers (see People vBeauharnois, 64 AD3d 996, 1001 [2009], lv denied 13 NY3d 834 [2009];People v Massey, 45 AD3d at 1048). In addition to finding defendant a persistent felonyoffender and fully exploring the details of his criminal history subsequent to the plea offers, thecourt heard the victim's testimony and observed defendant's demeanor in connection with thetrial and hearing, which could have convinced the court that defendant deserved harsherpunishment.
Peters, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: While defendant's counseladvised this Court by letter after oral argument that the US Court of Appeals for the SecondCircuit recently found New York's persistent felony offender statute unconstitutional (Besserv Walsh, 601 F3d 163 [2010]), this Court is bound to follow decisions of the New YorkCourt of Appeals, which have found the same statute constitutional (see People v Quinones, 12 NY3d116, 125-131 [2009]; People vRivera, 5 NY3d 61, 66-70 [2005]; People v Rosen, 96 NY2d 329, 334-335[2001]).