| People v Newkirk |
| 2010 NY Slip Op 06119 [75 AD3d 853] |
| July 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent-Appellant, vDavid Newkirk, Appellant-Respondent. |
—[*1]
Egan Jr., J. Appeals (1) from an order of the Supreme Court (Lamont, J.), rendered April 20,2006 in Albany County, which partially granted defendant's motion for a trial order of dismissal,and (2) from a judgment of said court, rendered April 20, 2006 in Albany County, upon a verdictconvicting defendant of the crime of sexual abuse in the first degree (three counts).
In a six-count indictment, defendant was charged with rape in the first degree (three counts)and sexual abuse in the first degree (three counts). The indictment was based upon allegationsthat on May 2, 4 and 6, 2005, defendant raped the victim (born in 1987), his stepdaughter, andsexually abused her by rubbing his penis between her legs while using forcible compulsion. Ajury convicted defendant on all six counts. Prior to sentencing, Supreme Court granteddefendant's motion for a trial order of dismissal as to the three counts of rape in the first degree,concluding that the People's evidence was not legally sufficient to establish penetration(see CPL 290.10 [1]). Supreme Court thereafter sentenced defendant to three consecutiveterms of imprisonment of 3½ years for the three sexual abuse in the first degreeconvictions, resulting in an aggregate sentence of 10½ years. Defendant now appeals fromthe judgment of conviction and the People appeal from the order dismissing the three rape in thefirst degree counts.[*2]
Defendant argues that the evidence was legallyinsufficient to support his convictions for sexual abuse in the first degree, claiming that there wasno evidence that he exerted physical force against the victim or implicitly or expressly threatenedher. He further contends that the convictions were against the weight of the evidence. Initially,we note that defendant's motion to dismiss, made both at the close of the People's case and at theclose of all the evidence, specifically addressed defendant's contention that the evidence waslegally insufficient with regard to the rape charges. His challenge to the legal sufficiency of thesexual abuse in the first degree charges, however, was limited to a general motion to dismiss,and he did not specifically advance the grounds upon which he now relies on appeal.Accordingly, defendant failed to preserve the legal sufficiency issue he now raises on appeal(see People v Finger, 95 NY2d 894, 895 [2000]; People v Nesbitt, 69 AD3d 1109, 1110-1111 [2010], lvdenied 14 NY3d 843 [2010]). Nevertheless, "we necessarily review the evidence adduced asto each of the elements of the crimes in the context of our review of defendant's challengeregarding the weight of the evidence" (People v Caston, 60 AD3d 1147, 1148-1149 [2009]) for whichthere is no preservation requirement (see People v Danielson, 9 NY3d 342, 348 [2007]).
Insomuch as we find here that it would have been reasonable for the factfinder to reach adifferent conclusion, "[we] must, like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Romero, 7NY3d 633, 643 [2006] [internal quotation marks and citations omitted]; see People v Clark, 51 AD3d1050, 1051-1052 [2008], lv denied 10 NY3d 957 [2008]). Moreover, we mustevaluate the evidence from a neutral prospective while extending appropriate deference to thefactfinder's credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Barringer, 54 AD3d 442,443 [2008], lv denied 11 NY3d 830 [2008]).
Defendant was convicted of having subjected the victim to sexual contact by forciblecompulsion (see Penal Law § 130.65 [1]). Sexual contact is defined as "anytouching of the sexual or other intimate parts of a person . . . for the purpose ofgratifying sexual desire of either party" (Penal Law § 130.00 [3]). As relevant here,forcible compulsion is defined as compelling "by either . . . use of physical force;or . . . a threat, express or implied, which places a person in fear of immediate deathor physical injury to himself, herself or another person" (Penal Law § 130.00 [8]). Here,the victim testified that on three separate occasions in May 2005, defendant picked the lock onher bedroom door, climbed on top of her and, while holding her hands, removed her pajamapants and underwear and rubbed his penis along the outside of her vagina until he ejaculated.The victim testified that she was unable to get away due to defendant lying on top of her andholding her hands. Further, semen samples found on the victim's sheets and on one pair of herunderwear were linked, through DNA testing, to defendant. Upon our independent review of therecord, and according the jury due deference in its resolution of credibility issues, we concludethat the verdict was supported by the weight of the evidence (see People v Texidor, 71 AD3d 1190, 1193 [2010]; People v Pomales, 49 AD3d 962,963 [2008], lv denied 10 NY3d 938 [2008]).
Defendant also contends that Supreme Court erred in denying his motion for a mistrial.Defendant argues that the victim's testimony, as well as remarks by the People duringsummation, referenced prior sexual abuse of the victim by defendant and therefore violatedSupreme Court's pretrial Molineux ruling that the prejudicial effect of such evidence faroutweighed any probative value. At trial, when asked why she did not scream during the courseof the alleged incidents, the victim testified, "Because it was something that always happened."The People then asked why she had not told her mother and the victim responded, "Because it's[*3]been going on." At this point defendant objected andimmediately moved for a mistrial. Supreme Court reserved decision on the motion for a mistrial,but granted defendant's motion to strike both answers. Thereafter, during summation, the Peopleasked the jury to consider "the dynamics of [the victim's] family" and questioned why thevictim's bedroom door had been locked, stating that "[t]hese things don't happen in a vacuum"and "this is not something that just out of the blue occurs." Following the People's summation,defendant again moved for a mistrial on the ground that the People unduly alluded to priorsexual abuse of the victim. The court thereafter denied the motions for a mistrial.
It is well settled that "the decision to grant or deny a motion for a mistrial is within the trialcourt's discretion and its decision will not be disturbed unless it amounts to an abuse ofdiscretion" (People v Benway, 217 AD2d 884, 885 [1995]; accord People vMiller, 239 AD2d 787, 787 [1997], affd 91 NY2d 372 [1998]). Here, despite the factthat the two responses by the victim were improper, viewing the comments in light of the entiretestimony and considering the overwhelming evidence of defendant's guilt, we conclude that theimpropriety was not so egregious as to deny defendant a fair trial (see People vCunningham, 222 AD2d 727, 730 [1995], lv denied 87 NY2d 1018 [1996]).Additionally, although defendant declined Supreme Court's offer of a prompt curativeinstruction, the court struck the responses and later instructed the jury to disregard all strickentestimony, alleviating any prejudice to defendant (see People v Young, 48 NY2d 995,996 [1980]; People v Johnson, 67AD3d 560 [2009], lv denied 14 NY3d 802 [2010]). Regarding the People's remarksduring summation, inasmuch as "[r]eversal of a conviction for prosecutorial misconduct iswarranted only where a defendant has suffered substantial prejudice such that he [or she] wasdeprived of due process of law" (Peoplev McCombs, 18 AD3d 888, 890 [2005]), we find that, in the context of the trial, thecomments concerning the dynamics of the household did not expressly reference any priorcrimes or bad acts by defendant and were not so substantially prejudicial as to deprive defendantof a fair trial (see People v Wilson,61 AD3d 1269, 1272 [2009], lv denied 14 NY3d 774 [2010]; People vMcKnight, 306 AD2d 546, 548 [2003], lv denied 100 NY2d 596 [2003]).
We also reject defendant's claim that Supreme Court erred by admitting evidence of bloodbeing found on the victim's sheets and mattress pad. Even if defendant was correct in hiscontention that the admission of the blood evidence was error, in light of the fact that there wasno evidence presented that the victim was physically injured during the incidents or as to whoseblood it was or when it was left there, we find that "there is no view of the evidence which wouldsuggest a significant probability that defendant would have been acquitted but for the wrongfuladmission of this evidence" (People vWhite, 41 AD3d 1036, 1038 [2007], lv denied 9 NY3d 965 [2007]; see People v Tatro, 53 AD3d 781,785 [2008], lv denied 11 NY3d 835 [2008]). We reach a similar conclusion as todefendant's challenge to the admission of testimony from the sexual assault nurse examiner whotreated the victim after the alleged incidents. Insofar as the nurse testified that there was noevidence of injury to the victim, including vaginal tearing, the admission of her testimonyconcerning vaginal tearing in general and the use of diagrams of female genitalia did not, in ourview, constitute reversible error (seePeople v Rivera, 70 AD3d 1177, 1181-1182 [2010]). Defendant's remaining challengeson appeal to the admission of evidence during trial were not preserved for our review by a properobjection (see People v Gray, 86 NY2d 10, 19 [1995]).
Finally, we find no merit to defendant's contention that his sentence was harsh and excessiveand we discern no abuse of discretion or extraordinary circumstances warranting a reduction ofthe sentence in the interest of justice (see People v Hodges, 66 AD3d 1228, 1234[*4][2009], lv granted 13 NY3d 939 [2010]).
Turning to the People's appeal, we reject their contention that the evidence presented waslegally sufficient to support a conviction of rape in the first degree. "A person is guilty of rape inthe first degree when he or she engages in sexual intercourse with another person. . . [b]y forcible compulsion" (Penal Law § 130.35 [1]). Sexual intercourse"has its ordinary meaning and occurs upon any penetration, however slight" (Penal Law §130.00 [1]; see People v Brown, 67AD3d 1197, 1198 [2009]). During her testimony, the victim denied that defendant's penispenetrated her vagina but testified that his penis touched her vagina and rubbed against it withoutentering it, and that she had squeezed her legs together to prevent penetration. Additionally, hermedical records indicate that she informed hospital staff that defendant was unable to penetrateher vagina and the sexual assault nurse examiner testified that the examination of the victimrevealed no evidence of bruising, tearing, discharge or blood. Accordingly, as the evidence islegally insufficient to establish penetration, as opposed to external contact of the sexual parts (see People v Porlier, 55 AD3d1059, 1061-1062 [2008]; comparePeople v Jacobs, 37 AD3d 868, 869-870 [2007], lv denied 9 NY3d 923 [2007]),we conclude that Supreme Court properly dismissed the three counts as to rape in the firstdegree.
We do, however, find merit in the People's contention that, after determining that theevidence was legally insufficient to support the counts charging defendant with rape in the firstdegree, Supreme Court should have reduced the convictions to the lesser included offense ofattempted rape in the first degree.[FN*] In deciding a trial order of dismissal, the court may issue an order dismissing any count of anindictment if the trial evidence "is not legally sufficient to establish the offense charged thereinor any lesser included offense" (CPL 290.10 [1] [a]). Based upon our review of the record, theevidence was legally sufficient to sustain the lesser included offense of attempted rape in the firstdegree (see Penal Law §§ 110.00, 130.35; People v Jackson, 48 AD3d 891,892 [2008], lv denied 10 NY3d 841 [2008]). Specifically, the victim testified thatdefendant got on top of her, held her hands down, removed her clothes and placed his penisbetween her legs and rubbed it against her vagina. The victim further testified that she squeezedher legs together to prevent sexual intercourse from occurring. Inasmuch as the court shouldhave reduced the convictions to the lesser included offense supported by the evidence, weconclude that the convictions for rape in the first degree should be reinstated and thereafterreduced to convictions for attempted rape in the first degree (see People v Smith, 183AD2d 653, 656 [1992], lv denied 80 NY2d 910 [1992]), and we remit the matter toSupreme Court for sentencing on said convictions. In light of the foregoing, the People'sremaining arguments are academic.
Cardona, P.J., Peters, Spain and McCarthy, JJ., concur. Ordered that the order is modified,on the law, by reversing so much thereof as partially granted defendant's motion and dismissedcounts one, two and three of the indictment charging [*5]rape inthe first degree; motion denied to said extent, defendant is convicted of the lesser includedoffense of attempted rape in the first degree under said counts of the indictment and matterremitted to the Supreme Court for sentencing on said convictions; and, as so modified, affirmed.
Ordered that the judgment is affirmed.
Footnote *: Inasmuch as the People madetheir opposition to the trial order of dismissal known to Supreme Court, we find that this issuewas preserved for our review (see CPL 470.05 [2]; People v Caban, 14 NY3d 369, 373 [2010]).