People v Kruppenbacher

2011 NY Slip Op 01371

Decided on February 24, 2011

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 24, 2011
102730



Calendar Date: January 11, 2011
Before: Peters, J.P., Kavanagh, Stein, Garry and Egan Jr., JJ.


Cliff Gordon, Monticello, for appellant.
Robert M. Carney, District Attorney, Schenectady
(Gerald A. Dwyer of counsel), for respondent.
Kavanagh, J.
Appeal from a judgment of the County Court of Schenectady
County (Hoye, J.), rendered May 14, 2009, upon a verdict
convicting defendant of the crimes of rape in the first degree,
kidnapping in the second degree (two counts), assault in the second
degree (three counts), attempted assault in the second degree,
sexual abuse in the first degree and unlawful imprisonment in
the first degree (three counts).
Defendant was arrested and subsequently charged by
indictment with a series of crimes against numerous prostitutes in
Schenectady County during a four-month period beginning in
January 2008. Ultimately, he was convicted after trial of rape in
the first degree, kidnapping in the second degree (two counts),
unlawful imprisonment in the first degree (three counts), assault
in the second degree (three counts), attempted assault in the
second degree and sexual abuse in the first degree
fnref='1'> The jury found defendant guilty of charges involving four of the victims and not guilty of all charges relating to a fifth victim.. He was later sentenced to an aggregate
prison term of 76 to 79 years, plus 20 years of postrelease
supervision. Defendant now appeals, asserting, among other
things, that (1) the charges alleging that he kidnapped and
unlawfully imprisoned his victims merged with the [*2]other crimes he is
alleged to have perpetrated against them and should have been
dismissed, (2) he did not receive meaningful assistance of
counsel, (3) as to some of the convictions, the evidence introduced at
trial was legally insufficient, (4) the testimony of each victim at
trial was, as a matter of law, incredible and the jury's verdict, as
a result, was not supported by the weight of the credible
evidence, and (5) the sentence imposed was harsh and excessive.

Defendant initially claims that his convictions for kidnapping
and unlawful imprisonment should be reversed because they
merged with his convictions for assault, attempted assault and
sexual abuse. Specifically, he argues that since the restraint he is
alleged to have used against each of the victims constitutes the
basis for his two convictions for kidnapping and three
convictions of unlawful imprisonment and was perpetrated as part of
his subsequent assault and sexual abuse of them, it became an
integral part of those crimes and merged with them. As a result,
the restraint did not constitute a separate criminal act and his
convictions for kidnapping and unlawful imprisonment should
be dismissed. Initially, we note that defendant failed to preserve
this issue for appellate review because he did not make this
argument in his motion to dismiss addressed to County Court
(see People v Adamson, 47 AD3d 318, 322 n 5 [2007], lv
denied 10 NY3d 807 [2007]; People v Ross, 43 AD3d 567, 570-571
[2007], lv denied 9 NY3d 964 [2007]; People v Richard, 30
AD3d 750, 755 [2006], lv denied 7 NY3d 869 [2006]; People v
Rosado, 26 AD3d 532, 533 [2006], lv denied 7 NY3d 762
[2006]; see also People v Leiva, 59 AD3d 161, 161 [2009], lv denied
12 NY3d 818 [2009]).
To the extent that defendant claims that the failure to raise the
merger issue at trial constituted ineffective assistance by his
counsel, we find that, on the facts presented, the merger doctrine
did not apply. Kidnapping and unlawful imprisonment will
merge and become part of the underlying criminal act if the
restraint imposed was simply a "minimal intrusion necessary and
integral to [the other] crime[s committed against the victims]"
and was not "simultaneous [or] inseparable from [these other]
crime[s]" (People v Gonzalez, 80 NY2d 146, 153 [1992]; see
People v Cassidy, 40 NY2d 763, 767 [1989]). Here, each victim
testified to agreeing to accompany defendant in his truck as part
of a sexual solicitation. However, each testified to how she
became frightened after getting into the vehicle and described,
in detail, how defendant used force and threats in order to
prevent each of them from getting out of his truck. One victim testified
to becoming alarmed when defendant drove the truck to a
secluded area and claimed that, as she attempted to get out of the
vehicle, defendant threatened her with a knife and said, "Listen
b****h, I'll kill you. Put your seat belt back on." She further testified
that defendant grabbed her by the hair and told her he would
"feed [her] to the pigs." A struggle ensued and the victim
described how she was injured when she jumped from the vehicle and
struck the pavement. Another victim testified to becoming
frightened when defendant drove the truck to a secluded area near a
landfill. She recalled pleading with him to let her go, at which
time she claimed that defendant threatened her with a knife,
placed his hands on her throat and attempted to restrain her by
tying her with a rope. A third victim claimed that, upon arriving
at a shopping center parking lot in his truck, defendant locked
the doors and, when she attempted to get out of the vehicle,
threatened her with a knife. Again, a struggle ensued and the
victim claimed that, when she finally escaped, defendant
attempted to run her over with the vehicle. As described, the degree of
restraint alleged to have been imposed by defendant in each
instance was more than a "minimal intrusion" and represented "a
crime in itself" that did not merge with the other crimes he
perpetrated against these victims (People v Gonzalez, 80 NY2d at 153;
see People v Cassidy, 40 NY2d at 766-767).[*3]
As for defendant's other claims regarding the legal
representation he received during these proceedings, we note that, as a
result of counsel's efforts on his behalf, defendant was not
convicted of a majority of the crimes contained in the indictment (see
People v Malcolm, 74 AD3d 1483, 1487 [2010]; People
Somerville, 72 AD3d 1285, 1288 [2010]). In addition, counsel ably
cross-examined the witnesses, in particular the victims who
testified on behalf of the prosecution at trial.
Defendant also argues that many of the crimes for he which
now stands convicted were not supported by legally sufficient
evidence ^[FN2]. Initially, he
challenges his kidnapping and unlawful imprisonment
convictions on the ground that the evidence did not support a finding
that he had restrained his victims as that term is defined by the
Penal Law. As for kidnapping, the prosecution was required to
prove that defendant abducted his victims (see Penal Law §
135.20) by restraining them "with intent to prevent [their]
liberation by either (a) secreting or holding [them] in a place where
[they were] not likely to be found, or (b) using or threatening to
use deadly physical force" (Penal Law § 135.00 [2]). To restrain
a person means to restrict his or her "movements intentionally
and unlawfully in such manner as to interfere substantially with
his [or her] liberty by moving him [or her] from one place to
another, or by confining him [or her] either in the place where
the restriction commences or in a place to which he [or she] has
been moved, without consent and with knowledge that the
restriction is unlawful" (Penal Law § 135.00 [1]). As for unlawful
imprisonment, the prosecution was required to establish that
defendant restrained the victim "under circumstances which
expose[d her] to a risk of serious physical injury" (Penal Law §
135.10).
Here, each victim testified to being forcibly confined to
defendant's truck and being threatened by defendant with a knife. Two
victims testified to being taken by defendant to remote locations
where they were held against their will and injured when they
tried to escape. A third, while not injured, claimed to have been
choked by defendant and testified that he attempted to run her
over with his vehicle as she made her escape. This testimony, in
addition to establishing that each victim was subjected to a
degree of restraint, which constituted a separate and independent
criminal act, also provided a legally sufficient basis for
defendant's conviction for kidnapping and unlawful imprisonment (see
People v Bowman, 79 AD3d 1368, 1369 [2010]).
Defendant also claims that his conviction for sexual abuse in
the first degree is not supported by legally sufficient evidence
because it was never established at trial that he subjected the
victim to any form of sexual contact (see Penal Law § 130.65
[1]; see also Penal Law § 130.00 [8]). Sexual contact is defined
as that contact with "the sexual or other intimate parts of a
person for the purpose of gratifying sexual desire of either party"
(Penal Law § 130.00 [3]). [*4]Here, the victim testified that after she
escaped from the vehicle, defendant caught her, knocked her to
the ground and, in the process of dragging her back to the truck,
her pants, long underwear and boots came off. The victim
claimed that, in the ensuing struggle, defendant climbed on top of her
as she lay face down on the pavement and he attempted to pry
open her legs by placing his hands near her vagina. She recalled
that during the attack, he forced his hands on her buttocks and
placed his naked thighs against her legs. In addition, blood
stains identified as coming from defendant were later found on
the undergarments that the victim was wearing at the time she
was attacked. This evidence established that defendant had
physical contact with "the sexual or other intimate parts of [the
victim's] person for the purpose of gratifying [his] sexual desire"
(Penal Law § 130.00 [3]) and provided a legally sufficient basis
for his conviction of sexual abuse in the first degree (see People
v Watson, 281 AD2d 691, 697 [2001], lv denied 96 NY2d 925
[2001]).
We do agree with defendant that his conviction for assault in
the second degree under count 27 must be reversed because no
evidence was presented that this victim sustained "physical
injury" when defendant threatened her with a knife (see Penal
Law § 120.05 [2]). Physical injury is defined as "impairment of
physical condition or substantial pain" (Penal Law § 10.00 [9];
see People v Gonzalez, 64 AD3d 1038, 1041-1042 [2009], lv
denied 13 NY3d 796 [2009]; People v Gragnano, 63 AD3d
1437, 1439-1440 [2009], lv denied 13 NY3d 939 [2010]). Here,
the victim testified that while she struggled with defendant, he
cut the knuckle on her left middle finger with a knife causing it
to bleed. While it is true that, to constitute physical injury, the
pain caused by such a wound need not "be severe or intense to
be substantial" (People v Foster, 52 AD3d 957, 959 [2008], lv
denied 11 NY3d 788 [2008] [internal quotation marks and
citations omitted]; see People v Chiddick, 8 NY3d 445, 447 [2007];
People v Stearns, 72 AD3d at 1216-1217), it must, at the
minimum, cause some pain or, to some extent, result in some
impairment of the use of the finger. No such testimony was elicited
from the victim and, aside from an "insignificant" scar on her
finger, no evidence was introduced that she lost the use of this
finger or that it was impaired by this injury (see People v
Williams, 46 AD3d 1115, 1117 [2008], lv denied 10 NY3d 818
[2008])^[FN3]. However,
there can be no doubt that defendant harbored an intent to harm
the victim when he attacked her with his knife. As a result,
legally sufficient evidence does exist to establish that he
attempted to assault this victim with this knife and provides a legally
sufficient basis for his conviction of the lesser included offense
of attempted assault in the second degree (see Penal Law §§
110.00, 120.05 [2]; People v Williams, 46 AD3d at 1117; see
also People v Alvarez, 38 AD3d 930, 935 [2007], lv denied 8
NY3d 981 [2007]).
Defendant also claims that the verdict is against the weight of
the credible evidence because the testimony given by each
victim — both in content and context — is incredible as a matter of law
and should not be used to support any of the charges for which
he now stands convicted. When conducting a weight of the
evidence review, we must view the evidence introduced at trial
in a neutral light (see People v Race, 78 AD3d 1217, 1219
[2010]; People v Marshall, 65 AD3d 710, 712 [2009], lv denied 13
NY3d 940 [2010]) giving deference to the jury's "'opportunity to
view the witnesses, hear the testimony and observe demeanor'"
(People v [*5]Burroughs, 64 AD3d 894, 897 [2009], lv denied 13
NY3d 794 [2009], quoting People v Bleakley, 69 NY2d 490,
495 [1987]; accord People v Race, 78 AD3d at 1219). If a
different verdict would not have been unreasonable, we then must
"'weigh the relative probative force of conflicting testimony and
the relative strength of conflicting inferences that may be drawn
from the testimony'" (People v Bleakley, 69 NY2d at 495,
quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943];
accord People v Stewart, 60 AD3d 1111, 1113 [2009], lv denied
12 NY3d 860 [2009]).
In effect, defendant argues that the character of each victim is
such that any testimony she gave at trial is inherently suspect.
He also contends that their accounts as to what transpired are so
inconsistent and implausible that their testimony is not credible
and must be rejected as a matter of law. While legitimate
questions were undoubtedly raised by defendant's counsel as to the
credibility of these witnesses — and aspects of their testimony are
troublesome — we cannot conclude that their testimony, when
viewed in the context of the other evidence introduced at trial,
was incredible or inherently unreliable as a matter of law (see
People v Richards, 78 AD3d 1221, 1224 [2010]; People v
Stearns, 72 AD3d at 1216). We note that three victims promptly
reported these attacks to the police, two of whom did so after they had
been found bruised and battered by the police at an odd hour,
walking on a public highway. Each victim, independent of each
other and prior to defendant's arrest, gave descriptions of the
perpetrator and his vehicle that were largely consistent with each
other and provided accounts as to what transpired — the nature of
a solicitation, the vehicle, the attempt to restrain them, the
threats, and the use of a weapon — that were strikingly similar to each
other. Moreover, defendant does not deny being the individual
who was with these victims when they claim these attacks
occurred ^[FN4]. This additional proof provided compelling
corroboration of the victim's testimony and belies any
conclusion that defendant's convictions are not supported by the
weight of the credible evidence introduced at trial.
Finally, defendant's sentence, while severe, can hardly be
considered harsh and excessive given the number of victims, the
threats attributed to him, the use of a knife and the nature of the
assaults he stands convicted of perpetrating against these
women. In our view, extraordinary circumstances do not exist that
would warrant a reduction of the sentence in the interest of
justice (see People v Newkirk, 75 AD3d 853, 857-858 [2010]).
We have examined defendant's remaining claims and find that
they are without merit.
Peters, J.P., Stein, Garry and Egan Jr., JJ., concur.
ORDERED that the judgment is modified, on the law, by
reducing defendant's conviction of assault in the second degree
under count 27 of the indictment to attempted assault in the
second degree; vacate the sentence imposed thereon and matter
remitted to

MEMORANDUM AND ORDER


the County Court of Schenectady County for resentencing; and, as so modified, affirmed.[*6]

Footnotes

Footnote 2: While we agree with the prosecution that defendant failed to preserve his claims of legal insufficiency as to the charges filed in regard to one of the victims (counts 8 and 11) (see People v Stearns, 72 AD3d 1214, 1216 n 2 [2010], lv denied 15 NY3d 778 [2010]; People v Morrison, 71 AD3d 1228, 1229 [2010], lvs denied 15 NY3d 747, 754 [2010]), we do find that defendant's motion to dismiss was sufficiently detailed to preserve his claims regarding the assault in the second degree conviction in count 27.

Footnote 3: Given this result — and the absence of evidence establishing that the victim was physically injured in the attack as a result of the knife — we need not address defendant's claim that County Court should have submitted assault in the third degree as a lesser included offense.

Footnote 4: In fact, defendant admits soliciting these victims for an illicit purpose and becoming embroiled in an altercation with each of them. However, he claims that in each instance he argued with the victims over money and denies restraining or attempting to sexually assault any of them.