| People v Wright |
| 2011 NY Slip Op 07524 [88 AD3d 1154] |
| October 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gary Wright,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Kavanagh, J. Appeals (1) from a judgment of the County Court of Albany County (Herrick,J.), rendered January 12, 2010, upon a verdict convicting defendant of the crimes of attemptedrape in the first degree and sexual abuse in the first degree (two counts), (2) by permission, froman order of said court, entered November 12, 2010, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment of conviction, without a hearing, and (3) by permission, froman order of said court, entered December 22, 2010, which denied defendant's motion forreconsideration.
On September 5, 2008, defendant was arrested and charged in a misdemeanor complaint withsexual abuse in the third degree and forcible touching, based on the victim's claim that defendanthad forced himself on her in the woods behind her home earlier that summer. While thosemisdemeanor charges were pending, the matter was presented to a grand jury and, on April 3,2009, an indictment was filed charging defendant with attempted rape in the first degree and twocounts of sexual abuse in the first degree. Five days later, the People announced they were readyfor trial. After a jury trial that was conducted in November 2009, defendant was convicted of allcharges contained in the indictment. He was subsequently sentenced to a prison term of sevenyears, plus seven years of postrelease supervision on the attempted rape in the first degreeconviction, and a three-year prison term, plus three years of postrelease supervision on each of[*2]the sexual abuse in the first degree convictions, all sentencesto run concurrently. After County Court, without a hearing, denied defendant's motion to vacatethe judgment of conviction (see CPL 440.10), he moved for reconsideration claiming thatadditional new evidence had been found. The court again denied defendant's motion. Defendantappeals from the judgment of conviction and, by permission, from the denial of his motions. Weaffirm.
Initially, defendant moved to dismiss the indictment on the ground that the People failed todeclare their readiness for trial within 90 days of his arraignment on the misdemeanor complaint(see CPL 30.30 [1] [b]). County Court denied that application because it found that oncethe indictment was filed charging defendant with felonies, the People had six months toannounce their readiness for trial (see CPL 30.30 [1] [a]) and, when the People sodeclared on April 8, 2009, they complied with this statutory mandate. Defendant also argues thathe was deprived of the effective assistance of counsel because, prior to the indictment beingfiled, the statutory time period for the People to answer ready for trial on the misdemeanorcomplaint had already expired and, if counsel had moved to dismiss those charges, the motionwould have been granted (see CPL 30.30 [1] [b]).
CPL 30.30 (1) (b) provides that the People must declare their readiness for trial within 90days of the filing of a complaint charging a class A misdemeanor. The People concede that theydid not declare that they were ready for trial within 90 days of defendant being arraigned on themisdemeanor complaint, but contend, and we agree, that even if such a motion had been madeand the misdemeanor complaint had been dismissed, the People had the right to present evidenceregarding the underlying matter to a grand jury and obtain an indictment (see People vOsgood, 52 NY2d 37, 45 [1980]). Moreover, once an indictment was filed chargingdefendant with felonies, the People had six months to announce that they were ready for trial(see CPL 30.30 [1] [a]; People v Cooper, 90 NY2d 292, 294 [1997]). As fordefendant's claim that the failure to make this motion constituted ineffective assistance ofcounsel, we note that prior to the indictment being filed, counsel was involved in pleanegotiations with the People and, for strategic reasons, may well have concluded that such amotion was, at best, a futile gesture and not in defendant's best interests (see People vBlack, 247 AD2d 238 [1998], lv denied 91 NY2d 970 [1998]; see also People v Obert, 1 AD3d631, 632 [2003], lv denied 2 NY3d 764 [2004]).
Defendant also claims that the victim's testimony was inherently incredible and theconvictions are not supported by the weight of the credible evidence introduced at trial. He alsoargues that even if the jury accepted the victim's account of what transpired, he could not, as amatter of law, have committed the crimes of attempted rape in the first degree and sexual abusein the first degree.
In conducting a weight of the evidence review where a different verdict would not have beenunreasonable, 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 omitted]; see People v Danielson, 9 NY3d342, 348 [2007]; People vTerry, 85 AD3d 1485, 1486 [2011]). Further "we accord great deference to the jury'sconclusions regarding the credibility of witnesses and the weight to be given their testimony" (People v Scott, 47 AD3d 1016,1017 [2008], lv denied 10 NY3d 870 [2008]). Here, for defendant to be convicted ofeither attempted rape or sexual abuse, it had to be proven that he attempted to engage the victimin "sexual intercourse . . . [b]y forcible compulsion" (Penal Law § 130.35 [1];§ 100.00) or, subjected her "to [*3]sexual contact. . . by forcible compulsion" (Penal Law § 130.65 [1]). In that regard, thevictim testified that she was in the woods near her property with defendant when he suddenlyforced her to the ground, physically retrained her and, while laying on top of her with hisgenitalia exposed, attempted to remove her pants to have sexual intercourse with her. She statedthat during this attack, defendant forcibly removed her shirt and touched her exposed breasts. Hertestimony was corroborated by her daughter and niece, both of whom testified to seeing hershortly after the incident and describing her as distraught, dirty and disheveled. Each alsorecounted how the victim, at that time, told them that, only moments earlier, defendant hadattacked her (see People v Bell, 80AD3d 891, 892 [2011]; People vLaBarge, 80 AD3d 892, 893 [2011], lv denied 17 NY3d 797 [2011]; People v Shofkom, 63 AD3d1286, 1287 [2009], lv denied 13 NY3d 799 [2009], appeal dismissed 13NY3d 933 [2010]; People vScanlon, 52 AD3d 1035, 1039 [2008], lv denied 11 NY3d 741 [2008]). Thisproof belies defendant's assertion that the victim's testimony was incredible as a matter of law,and provides competent evidentiary support for each element of the crimes for which defendantstands convicted. In addition, the evidence, when viewed as an integrated whole, establishes thatdefendant's convictions for these crimes was supported by the weight of the credible evidenceintroduced at trial (see People vWise, 49 AD3d 1198, 1199 [2008], lv denied 10 NY3d 940 [2008]; People v Jackson, 48 AD3d 891,892 [2008], lv denied 10 NY3d 841 [2008]; compare People v Small, 74 AD3d 843, 844 [2010], lvdenied 16 NY3d 800 [2011]).
Defendant also claims that County Court committed reversible error when it allowed thePeople to introduce evidence that defendant had previously approached an individual namedKevin Kemmet and threatened him after seeing Kemmet's motorcycle near the vicinity of thevictim's home on her property. In their proffer, the People maintained that this evidence wasrelevant because it indicated that defendant believed that Kemmet was sexually involved with thevictim and was jealous of that relationship. While the probative value of this testimony issuspect, defendant did not specifically object to its admission.[FN1]Moreover, any error that may have been committed "was harmless since there was no significantprobability that defendant would have been acquitted" had this evidence not been admitted attrial (People v Tatro, 53 AD3d781, 785 [2008], lv denied 11 NY3d 835 [2008]; see People v Lindsey, 75 AD3d 906, 907-908 [2010], lvdenied 15 NY3d 922 [2010]; Peoplev White, 41 AD3d 1036, 1038 [2007], lv denied 9 NY3d 965 [2007]).
Defendant also argues that he was denied a fair trial as a result of prosecutorial misconduct."Reversal based on prosecutorial misconduct is warranted if the misconduct is such that thedefendant suffered substantial prejudice, resulting in a denial of due process. In reviewing claimsof misconduct, courts will consider the severity and frequency of the conduct, whether the courttook appropriate action and whether the result would have been the same absent the conduct" (People v Story, 81 AD3d 1168,1169 [2011] [citations omitted]). County Court responded appropriately to defense counsel'sobjections regarding the prosecutor's conduct and we conclude that the prosecutor's overallconduct was not such " 'a flagrant and pervasive [*4]pattern ofprosecutorial misconduct' " entitling defendant to a new trial (People v White, 79 AD3d 1460, 1465 [2010], lv denied 17NY3d 791 [2011], quoting People v Demming, 116 AD2d 886, 887 [1986], lvdenied 67 NY2d 941 [1986]).
Finally, County Court properly denied defendant's motions to vacate the judgment ofconviction based on newly discovered evidence (see CPL 440.10). In that regard,defendant sought a new trial because he claimed to have uncovered evidence that the victim andKemmet had testified falsely regarding the nature of their relationship. Specifically, bothKemmet and the victim maintained at trial that they were friends and did not have a sexualrelationship.[FN2]Defendant produced an affidavit from a third party who claimed to have seen Kemmet and thevictim on a prior occasion in what appeared to be an amorous relationship and who stated thatKemmet had previously told him that the victim was "his girlfriend." Defendant also sought tointroduce evidence of a voice mail that Kemmet apparently sent to the victim stating that heloved and missed her. County Court properly denied these applications, finding that this evidencewas collateral and that defendant failed to adequately account for why, if he had acted with duediligence, he would not have uncovered this evidence prior to trial (see CPL 440.10 [1][g]; People v Watkins, 49 AD3d908, 910 [2008], lv denied 10 NY3d 965 [2008]; People v McBean, 32 AD3d 549, 552 [2006], lv denied 7NY3d 927 [2006]; see also People vAbrams, 73 AD3d 1225, 1228 [2010], affd 17 NY3d 760 [2011]; People v Sharpe, 70 AD3d 1184,1186 [2010], lv denied 14 NY3d 892 [2010]).
Mercure, J.P., Rose and Malone Jr., JJ., concur. Ordered that the judgment and orders areaffirmed, and matter remitted to the County Court of Albany County for further proceedingspursuant to CPL 460.50 (5).
Footnote 1: We also note that defendanttestified at trial when asked about this encounter that he told Kemmet, "that's a good way to getyourself shot," and explained that he was simply warning Kemmet that by parking his vehicle onsomeone else's property and walking in the woods near that person's home, he could be mistakenfor a burglar.
Footnote 2: Defendant claimed at trial thatthe victim testified falsely about what happened in the woods because when her daughter andniece saw her, she was returning from a rendevous with Kemmet.