| People v Clairmont |
| 2010 NY Slip Op 06188 [75 AD3d 920] |
| July 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesClairmont, Appellant. |
—[*1]
Garry, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered April 13, 2009, upon a verdict convicting defendant of the crimes of criminal sexual actin the first degree (three counts), sexual abuse in the first degree (three counts) and assault in thethird degree (two counts).
On the morning of February 15, 2008, police answered a call for emergency assistance in theTown of Gansevoort, Saratoga County. Upon arrival, they met the victim, who had sought refugein her neighbor's home and was distraught and apparently injured. Paramedics were summonedand, during her transport to the hospital, the victim revealed that, in addition to having been"beat up" by defendant—her boyfriend with whom she was living at the time—hehad also sexually assaulted her.
Following a jury trial, defendant was convicted of three counts of criminal sexual act in thefirst degree, three counts of sexual abuse in the first degree and two counts of assault in the thirddegree. Defendant was sentenced to, among other things, concurrent prison sentences of 18 yearsto be followed by 12 years of postrelease supervision for his criminal sexual act in the firstdegree convictions and five years to be followed by 10 years of postrelease supervision for hissexual abuse in the first degree convictions. Defendant appeals.[*2]
Alleging that the evidence was legally insufficient andthat the verdict was against the weight of the evidence, defendant challenges the element offorcible compulsion for his three criminal sexual act in the first degree and three sexual abuse inthe first degree convictions.[FN1]Defendant does not dispute that three instances of sexual conduct occurred—twooccurrences of anal sexual conduct and one of oral sexual conduct; instead he argues that thevictim's admitted failure to say "no" or "stop" or otherwise manifest her unwillingness to engagein the sexual conduct amounts to a failure of the element of forcible compulsion. We do notagree.
As relevant here, forcible compulsion is compulsion by either physical force or "a threat,express or implied, which places a person in fear of immediate death or physical injury to. . . herself" (Penal Law § 130.00 [8]). In determining whether forciblecompulsion was employed to overcome the victim's lack of consent, "[t]he proper focus is on thestate of mind produced in the victim by the defendant's conduct" (People v Thompson,72 NY2d 410, 416 [1988]), that is, " 'what the victim, observing [the defendant's] conduct, feared[he] would or might do if [the victim] did not comply with [his] demands' " (id. at415-416, quoting People v Coleman, 42 NY2d 500, 505 [1977]; see People v Maggio, 70 AD3d1258, 1258-1259 [2010]; People vLittebrant, 55 AD3d 1151, 1156 [2008], lv denied 12 NY3d 818 [2009]).Notably, defendant was significantly larger and stronger than the victim, they had been in arelationship and living together for approximately five months and, being alone with him in theirtrailer at 2:00 a.m., the victim was isolated at the time of the assault and sexual conduct (seePeople v Maggio, 70 AD3d at 1258-1259; People v Littebrant, 55 AD3d at 1156;People v Sehn, 295 AD2d 749, 750-751 [2002], lv denied 98 NY2d 732 [2002]).
With regard to the events of February 15, 2008, the victim testified that she was awoken atapproximately 2:00 a.m. by defendant's "yelling and screaming" that she was "a whore" andother "nast[y] names," followed by his hitting her in the head and left hand and kicking her in theback and ribs while saying that "women [who] cheat . . . deserve to get treated likethis."[FN2]The victim stated that defendant then forced her to have anal sex with him and that, although shewas crying, she did not say anything at that point because "[she] was already scared for [her] life,and [she] didn't want to make it any worse than it already was." When defendant was finished, heleft the bedroom but continued "screaming" and "pumping himself up some more" in the livingroom, which caused the victim to become even more frightened. The victim testified thatdefendant then returned to the bedroom and forced her to "give him oral sex" while continuing toverbally denigrate her, and that she complied because "[she] didn't want to get hit anymore."This was followed by another episode of forced anal sex, during which the victim continued hersilence because she was scared that defendant would "start beating [her] again."
The victim's version of events was strongly supported by a taped phone conversationbetween her and defendant, recorded on February 16, 2008, and played for the jury at trial.During this conversation, defendant repeatedly apologized to the victim for the events of [*3]February 15, 2008, including the physical abuse and the anal sex,and admitted that "[it] was wrong of [him]" to have forced himself on her. He also told her thathe has "anger problems," that "[he's] not going to put [his] hands on her again" and that "if [she]really loved [him] . . . [she] would stick by [his] side and see if [he] could get somehelp." The jury did not credit defendant's attempts to minimize the import of this conversation byarguing that he "wasn't really paying attention" during the conversation and that "[he] was gonnatell her [he] was sorry for anything at that point," and we are similarly unpersuaded.
Further supporting the victim's account was the testimony of both the nurse and doctor whoexamined her in the emergency room and the photographs taken during the victim's stay in theemergency room, which established that defendant inflicted extensive physical injuries on thevictim. Additionally, the record demonstrates that the relationship between defendant and thevictim was an abusive and controlling one. Defendant was convicted of two counts of assault inthe third degree, which he does not challenge on appeal. These charges are based upon aDecember 2007 incident in which defendant physically assaulted the victim resulting in, amongother things, the tearing out of a chunk of the victim's hair, and upon the events of February 15,2008. Evidence of other incidences of defendant's violent and controlling behavior towards thevictim during the time that they lived together was also adduced at trial. Such evidence of"abusive behavior and threatening atmosphere" is clearly relevant to the determination regardingwhether forcible compulsion was employed to overcome the victim's unwillingness or inducecompliance (People v Fleegle, 20AD3d 684, 687 [2005], lv denied 5 NY3d 828 [2005], cert denied 547 US1152 [2006]; see People v Littebrant, 55 AD3d at 1156; People v Black, 304AD2d 905, 906-908 [2003], lv denied 100 NY2d 578 [2003]).
While the victim admitted that she did not tell him "no" or "stop" or otherwise clearlyexpress her unwillingness in some way when defendant's assaultive conduct—the"hitting," "kicking," "yelling" and "screaming"—ceased and his sexual conduct began, thecircumstances here were such that "the state of mind produced in the victim by the defendant'sconduct" (People v Thompson, 72 NY2d at 416) rendered the sexual contact to bewithout consent due to forcible compulsion, even in the absence of a clear rebuff by the victim(see People v Davis, 21 AD3d590, 591-592 [2005]; People v Black, 304 AD2d at 906-908; People vRogner, 265 AD2d 688, 689 [1999]).
Accordingly, viewing the evidence in a light most favorable to the People and giving themthe benefit of every favorable inference, we find that there is a " 'valid line of reasoning andpermissible inferences which could lead a rational person to the conclusion' " that the element offorcible compulsion was established by the trial evidence (People v Thompson, 72 NY2dat 413, quoting People v Bleakley, 69 NY2d 490, 495 [1987]; see People vMaggio, 70 AD3d at 1260). Similarly, while a different verdict would not have beenunreasonable, upon our review of all the credible evidence in a neutral light, and according greatdeference to the jury's resolution of issues of credibility, we find the verdict to be supported bythe weight of the evidence (see People v Maggio, 70 AD3d at 1260; People vLittebrant, 55 AD3d at 1155; People v Smith, 302 AD2d 677, 679 [2003], lvdenied 100 NY2d 543 [2003]; People v Sehn, 295 AD2d at 751).
Defendant's assertion that the prosecutor made improper and prejudicial comments duringsummation is not preserved for our review due to the failure to object (see People v Booker, 53 AD3d697, 704 [2008], lv denied 11 NY3d 853 [2008]; People v Warner, 45 AD3d 1182, 1183 [2007]) and, in any event,constituted fair comment on the evidence or proper response to defendant's summation (seePeople v Warner, 45 AD3d at 1183; People v Beyer, 21 [*4]AD3d 592, 595 [2005], lv denied 6 NY3d 752 [2005]).Finally, in light of the circumstances of the present crimes, defendant's criminal history and theabsence of extraordinary circumstances, we do not find the sentences imposed by County Courtto be harsh and excessive (see People v Smith, 302 AD2d at 680; People v Sehn,295 AD2d at 751).
Spain, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Defendant's claim was properlypreserved; he sought dismissal upon this specific ground at the close of the People's case andagain at the close of all evidence (seePeople v Payne, 3 NY3d 266, 273 [2004]).
Footnote 2: Apparently defendant thoughtthat the victim had said another man's name while talking in her sleep.