| People v Battease |
| 2010 NY Slip Op 05288 [74 AD3d 1571] |
| June 17, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Phillip P.Battease, Appellant. |
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Lahtinen, J. Appeals (1) from a judgment of the County Court of Washington County(McKeighan, J.), rendered January 23, 2008, upon a verdict convicting defendant of the crimesof criminal sale of a controlled substance in the fifth degree, incest in the third degree, rape in thethird degree, criminal sexual act in the third degree and coercion in the first degree, and (2) bypermission, from an order of said court, entered June 3, 2008, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant and the 22-year-old victim (a person related to defendant under Penal Law§ 255.25) resided together and engaged in sexual activity during part of the months ofMarch and April 2007. After the victim was released from a heroin detoxification program inmid-March 2007, defendant allegedly sold and supplied to her, in exchange for sex, theprescription drug Avinza, a morphine sulfate. In mid-April 2007, the victim went to police andreported that defendant had been providing Avinza to her, had coerced her to engage in sex, andhad made a video of some of their sexual activity. She stated to police that she had sex with himbecause he had threatened that, if she did not, he would cause her to lose custody of her youngchild by telling the child's father that she was on drugs. She also stated that sometimes he forcedher to have sex after she told him no.[*2]
Upon questioning by police, defendant admitted hissexual activity with the victim, which he insisted was consensual, and acknowledged that he hada video recording of some of their sexual activity. He claimed that he had made the video toshow the consensual nature of the sex after the victim had said to him on one occasion that shemight accuse him of rape. He was charged in a six-count indictment with criminal sale of acontrolled substance in the fifth degree, incest in the third degree, rape in the third degree,criminal sexual act in the third degree, rape in the first degree and coercion in the first degree. Ajury acquitted him of the most serious charge, rape in the first degree, but found him guilty of theremaining five counts. County Court sentenced him, as a persistent felony offender, to fiveconcurrent terms of 20 years to life in prison. His subsequent CPL 440.10 motion was denied.Defendant now appeals from the judgment of conviction and, by permission, from the denial ofhis CPL 440.10 motion.
We consider first defendant's argument that the verdict was not supported by legallysufficient evidence. This argument has merit as to counts three and four, and, as to such counts,defendant preserved the issue for our review with a specific motion to dismiss asserting thedeficiencies now advanced on appeal (see People v Roberts, 63 AD3d 1294, 1296 [2009]; People v Lozada, 35 AD3d 969,969-970 [2006], lv denied 8 NY3d 947 [2007]). Count three charged rape in the thirddegree based upon sexual intercourse when the victim was allegedly incapable of consentbecause she was under the influence of a controlled substance (see Penal Law §130.25 [1]) and, similarly, count four charged criminal sexual act in the third degree for oral sexwhen the victim was allegedly incapable of consent because she was under the influence of acontrolled substance (see Penal Law § 130.40 [1]). The grounds for establishingthat a person is incapable of consent are set forth in Penal Law § 130.05 (3) and thecurrent case was prosecuted on the theory that the victim was "physically helpless" (Penal Law§ 130.05 [3] [d]).[FN1]A person is physically helpless when he or she "is unconscious or for any other reason isphysically unable to communicate unwillingness to an act" (Penal Law § 130.00 [7]; see People v Cecunjanin, 67 AD3d1072, 1074 [2009], lv granted 14 NY3d 799 [2010] [extensive evidence of victim'shigh level of inebriation including blood alcohol content of .267% and lifeless appearance]; People v Williams, 40 AD3d1364, 1366 [2007], lv denied 9 NY3d 927 [2007] [victim in drug and alcoholinduced sleep when intercourse occurred]; People v DeCicco, 38 AD3d 937, 937 [2007], lv denied 8NY3d 983 [2007] [the defendant's sodomizing of victim was in progress when victim awokefrom sleep]; People v Perkins, 27AD3d 890, 892 [2006], lv denied 6 NY3d 897 [2006] [victim blacked out fromintoxication]; but see People vChapman, 54 AD3d 507, 509-510 [2008] [legally insufficient evidence of beingphysically helpless]; People v Conto, 218 AD2d 665, 666 [1995], lv denied 87NY2d 845 [1995] [proof did not establish that the victim was either unconscious or physicallyunable to communicate unwillingness to engage in sex]).
Here, the victim testified on direct examination (consistent with her statement to police) thatshe had sex with defendant because of his threats to expose her drug use and cause her to loseher child. While she described taking drugs and being "high," she never indicated that sexoccurred while she was unconscious, awaking from sleep, coming out of unconsciousness, or[*3]when she was so high as to be unable to communicate. Infact, to the contrary, she acknowledged telling defendant that she did not want to have sex withhim, but she relented out of fear for her child. Although she claimed to have been "fading in andout of consciousness" while at defendant's house, this condition was not tied to a specific timeperiod and, importantly, she did not testify that the alleged sex occurred when she was in suchcondition. The video does not show her unconscious or unable to communicate during thesegment depicting sexual conduct of the nature charged in the indictment. In an effective aspectof cross-examination, the extent of the victim's drug use during the relevant time wassignificantly minimized. She reiterated during cross-examination that she had sex with defendantbecause she feared his threats to reveal information that would result in her losing custody of herchild. The victim's drug use undoubtedly clouded her judgment, but, even when viewed in thelight most favorable to the prosecution, the record does not establish that sexual intercourse ororal sex occurred while the victim was either unconscious or physically unable to communicate.
Defendant's other arguments regarding counts three and four—including that theindictment had insufficient factual allegations and was duplicitous—are academic. Thesearguments were not preserved as to the remaining three counts (see People v Anderson,290 AD2d 658, 658 [2002], lv denied 97 NY2d 750 [2002]; People v Fiacco, 172AD2d 994, 996 [1991], lv denied 78 NY2d 965 [1991]), and the record reveals no reasonto exercise our interest of justice jurisdiction with regard to these issues (see People vMathis, 278 AD2d 803, 803 [2000], lv denied 96 NY2d 785 [2001]).
Contrary to defendant's contention, the remaining three counts of which he was convictedare supported by legally sufficient evidence. As for defendant's weight of the evidence argumentregarding those counts, we consider, first, whether a different verdict would not have beenunreasonable and, if so, we then "must, like the trier of fact below, weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People vRomero, 7 NY3d 633, 643 [2006] [internal quotation marks and citations omitted]). Adifferent verdict on count two, the crime of incest in the third degree, would have beenunreasonable in light of the overwhelming evidence, including the video made by defendanttogether with defendant's statement acknowledging sex with the victim (and their familialrelationship) as well as the victim's testimony regarding their familial relationship and sexualactivity (see People v Kirton, 36AD3d 1011, 1013-1014 [2007], lv denied 8 NY3d 947 [2007]). Counts one(criminal sale of a controlled substance in the fifth degree) and six (coercion in the first degree)could have reasonably resulted in acquittal. Those convictions turn, at least in part, on thecredibility of the victim's testimony. We accord deference to the jury's assessment of hercredibility (see People v Bleakley, 69 NY2d 490, 495 [1987]) and, upon weighing andconsidering the evidence as to such counts, we are unpersuaded by defendant's weight of theevidence argument.
Next, we consider defendant's contention that he was denied the effective assistance ofcounsel. "So long as the evidence, the law, and the circumstances of a particular case, viewed intotality and as of the time of the representation, reveal that the attorney provided meaningfulrepresentation, the constitutional requirement will have been met" (People v Baldi, 54NY2d 137, 147 [1981]; see People vMcDaniel, 13 NY3d 751, 752 [2009]). " '[C]ounsel's efforts should not besecond-guessed with the clarity of hindsight' and . . . our Constitution 'guaranteesthe accused a fair trial, not necessarily a perfect one' " (People v Turner, 5 NY3d 476, 480 [2005], quoting People vBenevento, 91 NY2d 708, 712 [1998]). Defense counsel was presented with a difficult casewhere his client had made a video of his conduct and, upon initial questioning by [*4]police, he had told them about the video and acknowledged thesexual activity. Nonetheless, counsel was able to get an acquittal on the count charging a Bfelony, the most serious charge that defendant faced. Counsel also made a detailed motionregarding the legal sufficiency of the evidence as to counts three and four, preserving for reviewan issue upon which he has now prevailed.[FN2]The cross-examination of the victim raised considerable credibility issues regarding some of hertestimony. Three witnesses were produced in an effort to present a defense. Timely objectionswere asserted. Appropriate motions were made both before and at trial. While representation wasless than perfect, the totality of the circumstances reveals that defendant received meaningfulrepresentation.
Defendant further urges that County Court erred in denying his CPL article 440 motionwithout a hearing. He asserted an array of purported errors, ranging from allegations ofmisrepresentation and use of false evidence by the prosecutor to ineffectiveness by his counsel.The motion was supported by only his affidavit. The record reveals the total lack of merit of hisspeculative contentions regarding the prosecutor. Moreover, County Court permitted defendant(who is well-acquainted with the criminal justice system) to set forth on the record prior to trialhis various complaints about his counsel (many of which he repeated in his motion) and, as notedby County Court in its decision on the CPL article 440 motion, "defendant was very verbose attrial and wasted no opportunity to complain about his defense counsel." The record wassufficiently developed as to this issue and County Court rendered a thorough written decisionaddressing defendant's various contentions. We find no reversible error (see People v Glanda, 18 AD3d956, 960-961 [2005], lv denied 6 NY3d 754 [2005], 6 NY3d 848 [2006]; Peoplev Alstin, 239 AD2d 790, 791 [1997], lv denied 91 NY2d 868 [1997]; see also People v Dishaw, 30 AD3d689, 691 [2006], lv denied 7 NY3d 787 [2006]).
Defendant challenges his sentence as excessive and violative of the US Constitution. At thetime that defendant was sentenced as a persistent felony offender (see Penal Law §70.10), the Court of Appeals had upheld the constitutionality of that statute (see People v Rivera, 5 NY3d 61[2005], cert denied 546 US 984 [2005]; People v Rosen, 96 NY2d 329 [2001],cert denied 534 US 899 [2001]; see also People v Quinones, 12 NY3d 116 [2009], certdenied 558 US —, 130 S Ct 104 [2009]). Recently, the United States Court ofAppeals for the Second Circuit has held that New York's persistent felony offender sentencingscheme violates the Sixth Amendment under Apprendi v New Jersey (530 US 466[2000]) and its progeny (Besser v Walsh, 601 F3d 163, 169 [2010]). In our federalsystem, an interpretation of federal law by our state's highest court is "no less authoritative thanthat of the federal court of appeals in whose circuit the [state] court is located" (Lockhart vFretwell, 506 US 364, 376 [1993, Thomas, J., concurring]; see United States ex rel.Lawrence v Woods, 432 F2d 1072, 1075-1076 [7th Cir 1970], cert denied 402 US983 [1971]). Stated another way, "[i]n passing on federal constitutional questions, the statecourts and the lower federal courts have the same responsibility [*5]and occupy the same [position]; there is parallelism but notparamountcy for both sets of courts are governed by the same reviewing authority of theSupreme Court" (State v Coleman, 46 NJ 16, 36, 214 A2d 393, 403 [1965], certdenied 383 US 950 [1966]). When such conflict[FN3]exists, we, as a mid-level state appellate court, "are bound by the rulings of our highest court"(People v Jackson, 46 AD3d1110, 1111 [2007], lv denied 10 NY3d 766 [2008] [internal quotation marks andcitation omitted]; see People vWicks, 73 AD3d 1233, 1236 n [2010]; People v Brown, 235 AD2d 344,344-345 [1997]).
Irrespective of the above, review of the sentencing minutes reveals that, when considering"the history and character of defendant and the nature and circumstances of his criminalconduct" in the second prong of the persistent felony analysis (Penal Law § 70.10 [2]),County Court relied—at least in part—on defendant's conduct as implicated in thetwo crimes for which we have concluded the evidence was legally insufficient. Those twoconvictions should no longer be part of the analysis. We thus vacate the sentences and remit forresentencing on the counts that are affirmed herein.
The remaining arguments, to the extent not rendered academic, have been considered andfound unavailing.
Cardona, P.J., Mercure, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by (1) reversing defendant's convictions of rape in the third degree andcriminal sexual act in the third degree under counts three and four of the indictment, and (2)vacating defendant's sentences on counts one, two and six; counts three and four dismissed,sentences imposed thereon vacated and matter remitted to the County Court of WashingtonCounty for resentencing on counts one, two and six; and, as so modified, affirmed. Ordered thatthe order is affirmed.
Footnote 1: Since there was no evidencethat any drugs were administered without her consent (see Penal Law § 130.00[6]), the People did not pursue a theory that the victim was incapable of consent by reason ofbeing mentally incapacitated (see Penal Law § 130.05 [3] [c]; People vThomas, 210 AD2d 992 [1994]).
Footnote 2: The failure to assert that theindictment was duplicitous could have been a legitimate strategy in light of defendant's admittedconduct. His defense was not that the repeated acts did not occur, but that they were allconsensual. If counsel had required proof as to each individual occurrence on separate days, hewould have exposed his client to potential consecutive sentences for each count; whereas, on theproof as presented, County Court properly imposed concurrent sentences for the multiple countsof which defendant was convicted.
Footnote 3: This conflict will continue untilresolved by the United States Supreme Court, reconciled by the Court of Appeals upon reviewafter leave to appeal is granted by a Judge of the Court of Appeals or a Justice of the AppellateDivision (see CPL 460.20 [2] [a]), or the statute is amended by the Legislature.