| People v Terry |
| 2011 NY Slip Op 05585 [85 AD3d 1485] |
| June 30, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Duncan Terry, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered January 30,2009 in Albany County, upon a verdict convicting defendant of the crime of rape in the firstdegree.
On January 29, 2008, defendant and the victim were engaging in consensual sexualintercourse when, according to the victim, defendant became physically and verbally aggressiveand refused her requests to stop. Defendant was thereafter indicted for rape in the first degree andrape in the third degree. Following a jury trial, he was convicted of rape in the first degree andsentenced, as a second felony offender, to 21 years in prison with five years of postreleasesupervision. He now appeals.
We are unpersuaded by defendant's contention that County Court erred in determining that hewas competent to stand trial. Two mental health professionals who examined defendantconcluded that, notwithstanding his long history of mental illness, defendant understood thejudicial process, the charges against him and the people involved in the case, and that he wascapable of assisting in his own defense (see CPL 730.10 [1]). Based upon this evidence,we discern no abuse of discretion by Supreme Court in finding defendant fit to stand trial (see People v Dewey, 18 AD3d894, 895 [2005]; People v Ciborowski, 302 AD2d 620, 621-622 [2003], lvdenied 100 NY2d 579 [2003]; People v Campbell, 279 AD2d 797, 798 [2001], lvdenied 96 NY2d 826 [2001]).[*2]
Defendant next maintains that the verdict is not supportedby legally sufficient evidence and is against the weight of the evidence. His general objection attrial that the People did not present a prima facie case was insufficient to preserve for our reviewhis challenge to the legal sufficiency of the evidence (see People v Phelan, 82 AD3d 1279, 1281 n [2011]; People v Adamek, 69 AD3d 979,980 [2010], lv denied 14 NY3d 797 [2010]). With respect to his challenge to the weightof the evidence, inasmuch as a different verdict would not have been unreasonable, we "must,like the trier of fact below, weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]; see People v Shepherd, 83 AD3d 1298, 1298 [2011]).
As relevant here, a defendant is guilty of the crime of rape in the first degree "when he or sheengages in sexual intercourse with another person . . . [b]y forcible compulsion"(Penal Law § 130.35 [1]). At trial, the victim testified that she invited defendant, who shehad previously met at a Narcotics Anonymous meeting, to her home on January 29, 2008 after hecalled her and told her that he was near her house and had a desire to use drugs. After he arrived,they started kissing and moved into the victim's bedroom where they began having consensualsexual intercourse. The victim stated that, after approximately one or two minutes, defendantbegan pulling her hair, choking her, hitting her, calling her vulgar names, spitting on her andbiting her. She testified that, although she struggled and repeatedly asked defendant to stop, hetold her to shut up. The victim stated that she ultimately stopped struggling, explaining that shefelt "he might kill [her]" if she kept resisting.
Defendant, on the other hand, testified that he and the victim had consensual sexualintercourse at her apartment on two separate occasions after being introduced at a NarcoticsAnonymous meeting. He conceded biting, striking and spitting on the victim during sex, buttestified that he only did so at her specific request. However, defendant also admitted havingproblems with impulse control and difficulty recalling the particulars of the events inquestion.[FN1]Faced with these differing version of events, the jury chose to credit the testimony of the victimand we find no basis to disturb its determination (see People v Shepherd, 83 AD3d at1299; People v Sensourichanh, 290 AD2d 886, 887-888 [2002]). Evaluating the evidencein a neutral light and deferring to the jury's superior position to determine witness credibility, wefind that the verdict was not contrary to the weight of the evidence (see People v Elwood, 80 AD3d988, 989-990 [2011], lv denied 16 NY3d 858 [2011]; People v Gregory, 78 AD3d 1246,1248 [2010], lv denied 16 NY3d 831 [2011]).
Defendant also claims that certain remarks by the prosecutor during cross-examination andon summation served to deprive him of a fair trial.[FN2]However, by failing to register an objection to any of the statements he now challenges,defendant has failed to preserve this issue [*3]for our review (see People v Leonard, 83 AD3d1113, 1117 [2011]; People vClairmont, 75 AD3d 920, 923-924 [2010], lv denied 15 NY3d 919 [2010]). Inany event, while the prosecutor made a remark that may have appeared to shift the burden ofproof to defendant, Supreme Court promptly issued curative instructions to the jury thatdefendant bore no burden of proof, thereby ameliorating any prejudice flowing from thestatement (see People v Peterson, 71AD3d 1419, 1420 [2010], lv denied 14 NY3d 891 [2010]; People v Jordan, 34 AD3d 927,930-931 [2006], lv denied 8 NY3d 881 [2007]; People v Warren, 27 AD3d 496, 498 [2006], lv denied 7NY3d 796 [2006]). The few other challenged remarks by the prosecutor, while improper, wereisolated and do not reflect a "flagrant and pervasive pattern of misconduct" such that reversal iswarranted (People v Hunt, 39 AD3d961, 964 [2007], lv denied 9 NY3d 845 [2007] [internal quotation marks omitted];see People v McCall, 75 AD3d999, 1002 [2010], lv denied 15 NY3d 894 [2010]; People v Kirker, 21 AD3d 588,589 [2005], lv denied 5 NY3d 853 [2005]).
Nor are we persuaded that defendant was denied the effective assistance of counsel.Defendant claims that defense counsel was deficient in not having cross-examined the victimabout a prior inconsistent statement. To be sure, defense counsel did not confront the victim withthe record from her February 4, 2008 emergency room visit listing a prior consensual sexualencounter with defendant on January 26, 2008, despite the fact that the victim testified on directexamination that the January 29, 2008 incident was the only time she had sexual intercourse withdefendant. However, the emergency room records were admitted into evidence and, during hissummation, defense counsel highlighted this exact passage to the jury and urged it to take thereport into account when assessing the victim's credibility. Thus, the manner in which counseladdressed the victim's prior inconsistent statement appears to have been a tactical decision (see People v Barnes, 29 AD3d390, 390-391 [2006], lv denied 7 NY3d 785 [2006]; People v Alicea, 229AD2d 80, 88-89 [1997], lv denied 90 NY2d 890 [1997]; see generally People vRyan, 90 NY2d 822, 823-824 [1997]; compare People v Cantave, 83 AD3d 857, 858-859 [2011]).Likewise, defendant has failed to demonstrate that his counsel lacked a legitimate reason for notpursuing an insanity defense (see Peoplev Kulakov, 72 AD3d 1271, 1274 [2010], lv denied 15 NY3d 775 [2010];People v Wheeler, 249 AD2d 774, 775 [1998]). We are similarly unpersuaded thatcounsel was remiss for failing to challenge the testimony of the victim's family attorney asimproper bolstering, as this witness's testimony was relevant to the investigative process andprovided background information to explain why the victim had not reported the incident to theauthorities immediately after it occurred (see People v Manning, 81 AD3d 1181, 1183 [2011]).[FN3]Notably, counsel pursued a plausible defense strategy, gave effective opening and closingstatements and successfully opposed the prosecutor's request to use certain damaging informationfrom defendant's criminal record as impeachment evidence during the prosecutor'scross-examination of him. Viewing the totality of the circumstances, we find that defendant wasafforded meaningful representation (see People v Phelan, 82 AD3d at 1283).
Finally, we are unpersuaded by defendant's claim that his sentence is harsh and excessive."[T]he mere fact that a sentence imposed after trial is greater than that offered in [*4]connection with plea negotiations is not proof that defendant waspunished for asserting his right to trial" (People v Chappelle, 14 AD3d 728, 729 [2005], lv denied 5NY3d 786 [2005] [internal quotation marks and citation omitted]; see People v Robinson, 72 AD3d1277, 1278 [2010], lv denied 15 NY3d 809 [2010]). Considering defendant'sextensive criminal history, which includes several sexual abuse convictions, and finding noextraordinary circumstances or abuse of discretion in the imposition of the sentence, we concludethat modification of the sentence is not warranted (see People v Manley, 70 AD3d 1125, 1125 [2010]).
The remaining arguments raised by defendant have been examined and found to be lacking inmerit.
Mercure, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: He also admitted makingapproximately 250 harassing telephone calls to the victim in the three days following theincident.
Footnote 2: Although defendant alsochallenges alleged improprieties by the prosecutor during voir dire, this issue is unpreserved and,in any event, without merit (see People vKossman, 46 AD3d 1104, 1107 [2007]).
Footnote 3: Although defendant alsocharacterizes the unobjected to background evidence contained in the testimony of the policeofficer who took the initial rape complaint from the victim as improper bolstering, we are notpersuaded (see e.g. People v Nieves, 294 AD2d 152, 152-153 [2002], lv denied98 NY2d 700 [2002]).