| People v Blackman |
| 2011 NY Slip Op 09210 [90 AD3d 1304] |
| December 22, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DevonBlackman, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Schenectady County (Hoye,J.), rendered December 15, 2009, convicting defendant following a nonjury trial of the crimes ofpredatory sexual assault (three counts), criminal sexual act in the first degree (two counts), rapein the first degree, assault in the first degree and burglary in the second degree, and (2) bypermission, from an order of said court (Drago, J.), entered October 13, 2010, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without ahearing.
In August 2008, the victim left a bar in the City of Schenectady, Schenectady Countyaccompanied by a man later identified as defendant. The victim has limited memory of whattranspired in the next few hours, but she testified that she recalled standing on a street cornerarguing with a man, hitting him, and then him choking her so severely that she began to loseconsciousness. She next remembered standing with her back to the door of an unfamiliarapartment, feeling dazed and "very, very frightened." Finally, she recalled sitting on a couch[*2]with a man who demanded oral sex.[FN1]The victim testified that she complied out of fear that if she did not, "he was going to hurt memore." Some time later, the victim awoke alone in an unfamiliar apartment. Her face and bodywere bloody and bruised, and she felt severe pain in her face, vagina and anus. Upon leaving theapartment, she recognized that she was close to her own residence. Upon her arrival there, shetold the babysitter who had been caring for her infant that she had been raped and beaten. Thevictim was hospitalized and treated for multiple injuries, including fractures of her jaw, the bonesurrounding her eye socket and the bridge and spines of her nose, facial lacerations, a vaginaltear, severe anal pain, and contusions on her face, limbs and body, and a ligature mark on herneck. Police investigating a break-in at an apartment near the victim's home found blood, signs ofstruggle, and items belonging to her. The victim's memory loss prevented her from identifyingher assailant, but forensic examination of DNA samples taken from her person and the apartmentyielded a match with samples of defendant's DNA in a police database. Police intervieweddefendant, who provided several inconsistent accounts before eventually stating that he met thevictim at the bar on the night in question and later broke into an apartment, where he and thevictim had consensual sex before falling asleep. He stated that, upon waking, he saw blood onthe victim's face, and thought she had a nosebleed. He then left while she was sleeping.
Defendant was charged with three counts of predatory sexual assault, two counts of criminalsexual assault in the first degree, two counts of assault in the first degree, and one count each ofattempted murder in the second degree, rape in the first degree, and burglary in the seconddegree. After a bench trial, County Court (Hoye, J.) convicted him of all of these charges exceptattempted murder and one of the assault counts. Defendant was thereafter sentenced as a secondfelony offender to three concurrent prison terms of 25 years to life on the predatory sexual assaultconvictions, three consecutive 25-year terms for the rape and criminal sexual assault convictions,and two 15-year terms to run concurrently with the other sentences for the burglary and assaultconvictions. In addition, a period of five years of postrelease supervision was imposed as part ofeach sentence except those for predatory sexual assault. Thereafter, defendant moved pursuant toCPL 440.10 to vacate the judgment of conviction. County Court (Drago, J.) denied the motionwithout a hearing. Defendant appeals from the judgment of conviction and, by permission, fromthe denial of his CPL 440.10 motion.
Defendant first contends that the evidence was legally insufficient to support his convictions.We reject his claim that the evidence of forcible compulsion was insufficient to support theconvictions for rape in the first degree (see Penal Law § 130.35 [1]; People v Newkirk, 75 AD3d 853,858 [2010], lv denied 16 NY3d 834 [2011]) and criminal sexual act in the first degree(see Penal Law § 130.50 [1]). To engage in forcible compulsion is "to compel byeither . . . use of physical force; or . . . a threat, express or implied,which places [the victim] in fear of immediate death or physical injury" (Penal Law §130.00 [8] [a], [b]; see People vLittebrant, 55 AD3d 1151, 1155 [2008], lv denied 12 NY3d 818 [2009]). Theexistence of an implied threat is established by a "subjective inquiry into what a victim feared adefendant might have done if he or she did not comply" (People v Porter, 82 AD3d 1412, 1413 [2011], lv denied 16NY3d 898 [2011]; see People vClairmont, 75 AD3d 920, 921 [2010], lv denied 15 NY3d 919 [2010]). Animplied threat of force was established here by the victim's memory of acceding to [*3]her assailant's sexual demand out of fear of a further attack (seePeople v Porter, 82 AD3d at 1414; People v Littebrant, 55 AD3d at 1155), as well asthe considerable difference in size and strength between defendant and the petite victim (seePeople v Clairmont, 75 AD3d at 921; People v Maggio, 70 AD3d 1258, 1258-1259 [2010], lvdenied 14 NY3d 889 [2010]; Peoplev Oglesby, 12 AD3d 857, 860 [2004], lv denied 5 NY3d 792 [2005]). Themedical evidence of the victim's extensive injuries, including those that were consistent withsexual assault, and her descriptions of her pain further established the use of physical force(see People v Clairmont, 75 AD3d at 922-923; People v Brown, 39 AD3d 886, 888 [2007], lv denied 9NY3d 873 [2007]). Defendant was linked to the victim's injuries by the DNA evidence, inparticular DNA found around the victim's vagina and anus (see People v Collins, 56 AD3d 809, 810 [2008], lv denied11 NY3d 923 [2009]; People vJacobs, 37 AD3d 868, 869 [2007], lv denied 9 NY3d 923 [2007]), as well as thetestimony of a witness who saw defendant outside the bar, arguing with the victim and grabbingher wrists, and his own admission that he saw blood on her face after having oral and vaginalintercourse with her while the two were alone in the apartment. Viewing this evidence in the lightmost favorable to the People, we find a "valid line of reasoning and permissible inferences whichcould lead a rational person to the conclusion reached" (People v Bleakley, 69 NY2d 490,495 [1987]; see People v Maricevic,52 AD3d 1043, 1044 [2008], lv denied 11 NY3d 790 [2008]).
Defendant failed to preserve his claim that his convictions for predatory sexual assault andassault in the first degree were not supported by legally sufficient evidence that the victimsuffered a serious physical injury (see Penal Law § 10.00 [10]; § 120.10 [4];§ 130.95 [1] [a]; People v Gray, 86 NY2d 10, 20-21 [1995]). Considering theseverity of the victim's injuries—which included multiple facial fractures, required her toundergo two surgeries, and left her, more than a year after the attack, with a limited ability toopen her mouth, scarring on her neck, and permanent nerve damage manifested by numbness onthe left side of her face and drooping of that side of her mouth—no modification in theinterest of justice is warranted (seePeople v Brabant, 61 AD3d 1014, 1015-1016 [2009], lv denied 12 NY3d 851[2009]; People v Khuong DinhPham, 31 AD3d 962, 965-966 [2006]; compare People v Sleasman, 24 AD3d 1041, 1042-1043 [2005]).Further, in view of our conclusion that the evidence was sufficient to establish forciblecompulsion, there was also legally sufficient evidence that the victim was injured during thecommission of the underlying sex crimes (see Penal Law § 120.10 [4]; §130.95 [1] [a]).
The evidence was also legally sufficient to support the conviction for burglary in the seconddegree (see Penal Law § 140.25 [1] [b]). Defendant's intent to commit a crimewhen he entered the apartment " 'may be inferred from the circumstances of [his] unlawful entry,unexplained presence on the premises, and actions and statements when confronted by police orthe property owner' " (People vVanbergen, 68 AD3d 1249, 1250 [2009], lv denied 14 NY3d 806 [2010],quoting People v Ostrander, 46AD3d 1217, 1218 [2007]). Defendant admitted to police that he broke into the apartment,and his claim that he did so only after the victim told him that she lived there was belied by,among other things, the evidence that he had already struggled with her and choked her intonear-unconsciousness and the victim's account of feeling frightened when she found herselfoutside the apartment door. Further, the falsity of such a claim by the victim would have beenimmediately apparent on entering the apartment, which was used as an office and furnished withsuch nonresidential items as file cabinets, printers, and desks. Thus, it may be rationally inferredfrom the evidence that defendant intended to commit a crime when he entered the apartment (see People v Judware, 75 AD3d841, 844-845 [2010], lv denied 15 NY3d 853 [2010]; People v Vasquez, 71 AD3d 1179,1180 [2010], lv denied 14 NY3d 894 [2010]). The blood and belongings of the victimand the disrupted furnishings in the apartment, in [*4]addition todefendant's admission that he saw blood on her face after having intercourse with her there, werelegally sufficient to establish that he caused her injuries while inside the apartment (seePenal Law § 140.25 [1] [b]).
Defendant next asserts that his convictions are not supported by the weight of the evidence.While a different verdict would not have been unreasonable, we reject this claim (see Peoplev Bleakley, 69 NY2d at 495; People v Porter, 82 AD3d at 1414). County Court(Hoye, J.) properly credited the extensive testimony describing the victim's injuries, defendant'sadmissions, and the DNA evidence linking him to the crimes. Any inconsistencies in the victim'stestimony and her likely intoxication at the time were fully explored at trial and did not renderher testimony incredible as a matter of law. Weighing the probative force of the conflictingtestimony and the relative strength of any conflicting inferences to be drawn, and accordingdeference to the factfinder's credibility determinations, we find the convictions supported by theweight of the credible evidence (see People v Littebrant, 55 AD3d at 1155-1156; People v Borthwick, 51 AD3d1211, 1214-1215 [2008], lv denied 11 NY3d 734 [2008]).
County Court did not err in permitting the babysitter to testify that the victim said she hadbeen raped and beaten. " 'An out-of-court statement is properly admissible under the excitedutterance exception when made under the stress of excitement caused by an external event, andnot the product of studied reflection and possible fabrication' " (People v Auleta, 82 AD3d 1417,1418-1419 [2011], lv denied 17 NY3d 813 [2011], quoting People v Johnson, 1 NY3d 302,306 [2003]). Determining whether the exception is applicable requires assessment of the natureof the event, the elapsed time, and the declarant's activities during that period (see People vVasquez, 88 NY2d 561, 579 [1996]; People v Edwards, 47 NY2d 493, 497 [1979];People v Auleta, 82 AD3d at 1419). Here, the victim awoke in pain in a strangeapartment, walked to a mirror, and saw her visible injuries. She testified that after lying downagain briefly because she could not stand for long, she left the apartment and walked two doorsdown the street to her own residence "in a daze. In shock." The babysitter—the first personthe victim encountered—immediately asked what had happened, and the victim respondedwith the challenged statement. The victim was plainly under "the continuing stress of the ordeal,"and her statement was thus properly admitted (People v Auleta, 82 AD3d at 1419; seePeople v Johnson, 277 AD2d 702, 704-705 [2000], lv denied 96 NY2d 831 [2001]).
County Court also properly admitted hospital records containing statements made by thevictim during her treatment. Defendant contends that the records were inadmissible because thevictim's statements were obtained for forensic purposes and were not germane to her treatment ordiagnosis (see CPLR 4518 [a]; People v Wright, 81 AD3d 1161, 1164 [2011], lv denied 17NY3d 803 [2011]; People vKossman, 46 AD3d 1104, 1106-1107 [2007]). The treating physician testified that sheperformed a forensic examination of the victim, asking her to recount the events of the previousnight and to answer questions on a checklist as to how her injuries occurred.[FN2]The physician testified that the victim's responses were relevant for forensic purposes, and theinformation was also pertinent to her medical care and treatment. As the questions had the dualpurpose of assisting in the investigation of the crime and the care and treatment of the [*5]victim's injuries, the victim's responses were properly admitted (see People v Rogers, 8 AD3d 888,892 [2004]).[FN3]Moreover, if any error had occurred, it would have been harmless (see People v Kello, 96NY2d 740, 744 [2001]; People v Thomas, 282 AD2d 827, 828-829 [2001], lvdenied 96 NY2d 925 [2001]). Defendant's additional claim that admission of this evidenceviolated his right to confront witnesses was unpreserved (see People v Wright, 81 AD3dat 1164-1165). In any event, no such violation occurs where, as here, a defendant has theopportunity to cross-examine the declarant (see Crawford v Washington, 541 US 36, 59[2004]; People v Goldstein, 6 NY3d119, 127 [2005], cert denied 547 US 1159 [2006]; compare People v Duhs, 16 NY3d405, 408-410 [2011]). Notably, the victim's incomplete memory of the attack wasthoroughly explored on cross-examination.
County Court properly denied defendant's motion for a mistrial based on his claim that thePeople committed a Brady violation by failing to disclose that the victim had madeprevious allegedly false claims of sexual abuse until two days before trial. To establish such aviolation "a defendant must show that (1) the evidence is favorable to the defendant because it iseither exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution;and (3) prejudice arose because the suppressed evidence was material" (People v Fuentes, 12 NY3d 259,263 [2009]). The court correctly determined that evidence concerning the victim's priorallegations was not material to this prosecution. Prior false rape complaints may be admissiblewhen they "suggest a pattern casting substantial doubt on the validity of the charges made by thevictim" or "indicate a significant probative relation to such charges" (People v Mandel,48 NY2d 952, 953 [1979], appeal dismissed and cert denied 446 US 949 [1980]). Here,no such probative relationship existed. In the prior incident, the victim claimed that she wasraped by a man whom she knew and identified. The instant prosecution did not result from thevictim's identification; instead, defendant was implicated in the undisputed attack by DNAevidence and his own admissions. Even if it had been clearly established that the victim's priorallegations were false, they neither cast doubt upon, nor were they probative to, the currentcharges (see id.; People vLane, 47 AD3d 1125, 1128 [2008], lv denied 10 NY3d 866 [2008]). Further,defendant was permitted to cross-examine the victim as to the truthfulness of the prior allegations(see People v Cortijo, 70 NY2d 868, 870 [1987]; People v Newland, 83 AD3d 1202, 1204 [2011], lv denied17 NY3d 798 [2011]). Defendant contends that this cross-examination was improperly limited,but, for the reasons above, we agree with County Court that the issue of the victim's credibilitywas collateral to this case (see People vScott, 67 AD3d 1052, 1054-1055 [2009], affd 16 NY3d 589 [2011]; People v Bellamy, 26 AD3d 638,641 [2006]; People v Brown, 24AD3d 884, 887-888 [2005], lv denied 6 NY3d 832 [2006]).
Defendant next contends that his sentence is harsh and excessive. He has a lengthy priorcriminal history, beginning at the age of 19, primarily involving drug offenses, and was releasedon parole after a felony drug conviction only 2½ months before committing the subjectcrimes. In view of the violent and serious nature of these offenses, we find no extraordinarycircumstances or abuse of discretion warranting any modification (see People v Stearns, 72 AD3d1214, 1219 [2010], lv denied 15 NY3d 778 [2010]; People v Lopez-Aguilar,64 AD3d [*6]1037, 1038 [2009], lv dismissed 13 NY3d940 [2010]).
Finally, County Court (Drago, J.) did not abuse its discretion in denying defendant's CPL440.10 motion without a hearing. In support of the motion, defendant contended that he hadnewly discovered evidence showing that a police officer's trial testimony about surveillancecameras near the bar was inaccurate, and that he received ineffective assistance of counsel. Evenif defendant had demonstrated that the surveillance cameras he now claims are located in the areacould not have been discovered before his trial by the exercise of due diligence (see People v Watkins, 49 AD3d908, 910 [2008], lv denied 10 NY3d 965 [2008]; People v Chaney, 298AD2d 617, 620 [2002], lv denied and dismissed 100 NY2d 537 [2003]), his assertionthat surveillance footage from these cameras would have shown him walking peacefully with thevictim is speculative and wholly based on his own assertions (see People v Glanda, 18 AD3d 956, 960-961 [2005], lvdenied 6 NY3d 754 [2005]; People v Morris, 299 AD2d 655, 657 [2002], lvdenied 99 NY2d 583 [2003]). Even if such footage were recovered, the overwhelmingevidence of defendant's guilt makes it highly unlikely that the verdict would have been different(see CPL 440.10 [1] [g]; Peoplev Terry, 44 AD3d 1157, 1159 [2007], lv denied 10 NY3d 772 [2008]; Peoplev Hogencamp, 300 AD2d 734, 736 [2002]). Defendant did not demonstrate that the camerashe allegedly located after the trial were also present at the time of the offenses; thus, he did notshow that the officer's testimony constituted a misrepresentation, nor does anything in the recordsuggest that the prosecutor or the court was aware of the alleged falsity (see CPL 440.10[1] [b], [c]; People v Passino, 25AD3d 817, 818-819 [2006], lv denied 6 NY3d 816 [2006]).
Finally, defendant asserts that he received ineffective assistance in that, among other things,his counsel allegedly failed to investigate his claim that police incorrectly identified theapartment where the events occurred. However, defendant did not " 'demonstrate the absence ofstrategic or other legitimate explanations' " for the alleged deficiency (People v Caban, 5 NY3d 143, 152[2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]); counsel could have made astrategic choice not to draw attention to defendant's damaging admission that he broke into anapartment while he was with the victim on the night in question. The record does not supportdefendant's claim that his counsel lied to him and conspired against him, but does reveal thatcounsel made appropriate motions and cogent objections, conducted vigorous examination andcross-examination, and obtained acquittals on two of the charges. Defendant received"meaningful representation and, therefore, the effective assistance of counsel" (People v Morehouse, 5 AD3d 925,927 [2004], lv denied 3 NY3d 644 [2004]; see People v Weatherspoon, 86 AD3d 792, 793-794 [2011], lvdenied 17 NY3d 905 [2011]); accordingly, his motion was properly denied.
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote 1: She testified that this was thesame man who had choked her earlier in the evening, but qualified that testimony oncross-examination.
Footnote 2: The victim was asked, amongother things, whether weapons were used, whether she was struck, grabbed, or strangled andwhether contact occurred between her assailant's penis and various parts of her body.
Footnote 3: The victim's statements werelimited to the nature of her injuries and the means by which they were sustained; she did notidentify defendant as her assailant (compare People v Ortega, 15 NY3d 610, 617-620 [2010];People v Wright, 81 AD3d at 1164).