| People v Richards |
| 2010 NY Slip Op 07828 [78 AD3d 1221] |
| November 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kevin Richards,Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (John N. Clo of counsel), for respondent.
Stein, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered May 8, 2009, upon a verdict convicting defendant of the crimes of rape in the second degree(eight counts) and criminal sexual act in the second degree (eight counts).
Defendant was charged in a 16-count indictment with eight counts of rape in the second degreeand eight counts of criminal sexual act in the second degree for having sexual intercourse and/or oraland/or anal sex with a 14-year-old girl. Defendant's motion to suppress statements that he had made topolice was denied following a Huntley hearing. After a jury trial, defendant was convicted of all16 charges and was subsequently sentenced to concurrent prison terms of three years, followed by 10years of postrelease supervision, for each count. Defendant now appeals and we affirm.
Defendant first contends that his convictions were based on legally insufficient evidence and wereagainst the weight of the evidence. Preliminarily, we note that, although defendant's challenge to thesufficiency of the evidence is unpreserved for our review because he failed to make a particularizedmotion to dismiss or to set aside the verdict directed at the specific deficiencies in the proof that he nowadvances, we will nonetheless consider the sufficiency of the evidence as to each element of the crimescharged in the context of our weight of the evidence review (see People v Vargas, 72 AD3d 1114, 1116 [2010], lv denied15 NY3d 758 [2010]; People vBarringer, 54 AD3d 442, 443 [2008], lv denied 11 NY3d 830 [2008]). In [*2]that regard, if we determine, based on all the credible evidence, that adifferent finding would not be unreasonable, we must evaluate the evidence in a neutral light and "'weigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony' " (People v Hebert, 68 AD3d 1530, 1531 [2009], lv denied 14NY3d 841 [2010], quoting People vRomero, 7 NY3d 633, 643 [2006]), while according appropriate deference to the jury'scredibility determinations (see People v Bleakley, 69 NY2d 490, 495 [1987]; People vHebert, 68 AD3d at 1531).
As relevant here, a person is guilty of the crime of rape in the second degree when, being 18 yearsold or older, "he or she engages in sexual intercourse with another person less than [15] years old"(Penal Law § 130.30 [1]), and criminal sexual act in the second degree occurs when a person18 years old or older "engages in oral sexual conduct or anal sexual conduct with another person lessthan [15] years old" (Penal Law § 130.45 [1]). It is undisputed that, at the time the crimes tookplace, defendant was 23 years old and the victim was 14 years old. The victim testified that, betweenApril 24, 2008 and June 11, 2008, she went to defendant's apartment every week after school orstayed overnight on weekends and engaged in sexual intercourse and/or oral sex with defendant.Although she was not able to recall all of the specific dates on which she and defendant engaged insexual activity, she did testify to some specific dates during the weeks in question. One of the specificdates on which the victim testified she had sex with defendant was June 11, 2008. She testified that,when she returned from school at approximately 5:00 p.m. that day, she and defendant engaged insexual intercourse and anal sex at defendant's apartment.
Defendant's former roommate also testified that she witnessed defendant and the victim "act[ing]like a couple," that she overheard defendant and the victim talking about having had sexual intercourseand anal sex on one occasion and that she found a video file on a computer that defendant claimeddepicted him and the victim having oral sex. In addition, the victim's mother testified that she allowedthe victim to sleep over at defendant's apartment, usually on weekends, as she was led to believe thatthe victim was staying over with the roommate. The jury also heard from Kurt Conroy, a police officerwho testified that defendant made various allegedly incriminating statements to him at the policestation.[FN*]A transcript of an instant message conversation purportedly between defendant and the victim, whereina person using defendant's screen name insinuates that he had sex and oral sex with the victim, was alsoadmitted into evidence. In contrast, defendant testified that he never had sexual relations with the victimand that they were only friends. Specifically with regard to counts 15 and 16 (referring to sexual actsoccurring on June 11, 2008), he testified that he spent the day at his mother's house and that he wentstraight to work from there. This testimony was corroborated by defendant's mother.[*3]
Defendant's challenge to the verdict as against the weight of theevidence is based on his contention that the victim and the roommate were incredible as witnesses for avariety of reasons. For example, he argues that the victim had a propensity to lie—as evidencedby her lying to her mother about who she was staying with at defendant's apartment—and thatshe had a motive to be dishonest about her relationship with him based on his allegedly declining toengage in a romantic relationship with her and becoming involved with someone else. In addition, thevictim denied any knowledge of a prominent scar allegedly on defendant's penis. Similarly, defendantargues that the roommate was a scorned and jealous lover of his. All of these issues were addressedbefore the jury and the jury apparently credited the testimony of the People's witnesses over thetestimony of defendant and his mother. Inasmuch as we find " 'nothing incredible or inherentlyunbelievable about [the] testimony [of these witnesses] . . . [we discern] no basis uponwhich to disturb the jury's credibility assessment[s], made after hearing [the witnesses'] testimony andobserving [their] demeanor' " (People vLane, 47 AD3d 1125, 1126 [2008], lv denied 10 NY3d 866 [2008], quoting People v Weber, 25 AD3d 919, 921[2006], lv denied 6 NY3d 839 [2006]). Accordingly, we find that defendant's convictionswere not against the weight of the evidence.
Defendant also argues that County Court should have suppressed the four statements he made tothe police, as recounted by Conroy, because they were the product of custodial interrogation prior toreceiving Miranda warnings. We disagree. In ascertaining whether defendant was in custodywhen the statements were made, we must look at the circumstances and determine "whether areasonable person innocent of any wrongdoing would have believed that he or she was not free toleave" (People v Paulman, 5 NY3d122, 129 [2005]; see People vBaggett, 57 AD3d 1093, 1094 [2008]).
Here, Conroy testified at a Huntley hearing that, after speaking with the victim and hermother, he went to defendant's apartment at approximately 10:30 p.m. to speak with defendant. Whendefendant requested that Conroy return in 15 minutes in order to give defendant time to shower,Conroy offered to meet him at the police station but defendant requested transportation. When Conroyreturned, defendant accompanied him to the police station in an unmarked police car, sitting in the frontseat without handcuffs. During the ride to the police station, Conroy advised defendant of the reason hewanted to speak with him. After arriving at the police station, defendant and Conroy spoke in aninterview room. Defendant was not handcuffed at the time. Although Conroy acknowledged that hewas carrying his gun in a visible holster, he was not in uniform. He also testified that it was his usualpractice to offer something to eat or drink to a person in an interview room, but did not have a specificrecollection of making such an offer to defendant. Conroy denied defendant's allegations that hethreatened him and testified that, during the approximately one hour time period from when Conroyarrived at defendant's apartment to the time of his arrest—after the statements at issue weremade—defendant did not request that the questioning end, that he be permitted to contact anattorney or that he be allowed to leave. Based upon this evidence, County Court concluded that thequestioning of defendant was investigatory rather than custodial and, accordingly, declined to suppressdefendant's statements. Considering the length of time that passed and the circumstances as a wholeand according deference to County Court's credibility determinations, we discern no error in itsdetermination (see People v Locke, 25AD3d 877, 878-879 [2006], lv denied 6 NY3d 835 [2006]; People v Rivenburgh, 1 AD3d 696,698 [2003], lv denied 1 NY3d 579 [2003]).
We are also unpersuaded by defendant's contention that County Court erred in redacting a portionof defendant's exhibit A (a transcript of instant messages sent between the victim and [*4]defendant's sister) which referenced the victim's prior sexual conduct withanother person. Upon reviewing the redacted statement in context, we find that County Court did notabuse its discretion in determining that it did not fall within any of the exceptions set forth in the rapeshield statute (see CPL 60.42) and was not material to defendant's case or to the victim'scredibility (see People v Lane, 47 AD3d at 1127-1128; see also People v Williams,81 NY2d 303, 312-313 [1993]).
Defendant's argument that he was deprived of the effective assistance of counsel is similarlyunconvincing. The record reveals that, considering the totality of the circumstances, defendant receivedmeaningful representation (see People v Jackson, 70 NY2d 768, 769 [1987]; People v Jackson, 48 AD3d 891, 893[2008], lv denied 10 NY3d 841 [2008]). Counsel for defendant made appropriate pretrial andposttrial motions, made various objections during trial, gave opening and closing statements and arguedzealously for the admission of statements made by the victim regarding her prior sexual experience.Counsel's various errors or shortcomings claimed by defendant are either belied by the record ordefendant has failed to " 'demonstrate the absence of strategic or other legitimate explanations'[therefor]" (People v Baker, 14 NY3d266, 270-271 [2010], quoting People v Rivera, 71 NY2d 705, 709 [1988]), and anyargument that alternate approaches would have substantially helped defendant's case are "speculativeand reflect efforts to second-guess trial strategy" (People v De Marco, 33 AD3d 1045, 1046 [2006]).
We have examined defendant's remaining contentions, including that his sentence was harsh andexcessive, and find them to be without merit.
Mercure, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The statements were: "She is mad atme because I am with someone else" (made in response to being informed of the allegations); "I neverforced her" (made in response to Conroy indicating that the victim had alleged that defendant rapedher); "What kind of time am I looking at? Statutory [r]ape is like one to three years. I cannot do time injail and be away from my daughter"; and "If you are going to arrest me, then I want to cooperate."