| People v Simonetta |
| 2012 NY Slip Op 02728 [94 AD3d 1242] |
| April 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChrisSimonetta, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (R. Sise, J.), rendered March 6,2009 in Schenectady County, upon a verdict convicting defendant of the crimes of rape in thethird degree, criminal sexual act in the third degree and unlawfully dealing with a child in thethird degree.
Defendant and the victim met in November 2007 when defendant sent her a message throughFacebook, an on-line social networking website, but their brief interaction ended once the victiminformed defendant that she had a boyfriend. Approximately two months later, the victim, havingbroken up with her boyfriend, reached out to defendant via Facebook informing him that she wasbored and wanted to get out of her house. After the two exchanged messages for a few hours,during which the victim asked defendant to pick her up, said "I'm yours for as long as you want,"told defendant that she thought he was "hot" and affirmed that she was "of age," defendantpicked up the victim down the street from her house and drove her back to his apartment in theCity of Schenectady, Schenectady County.
Shortly after arriving at defendant's apartment, defendant's friend came over and he anddefendant left to buy alcohol. They returned with a box of wine, after which defendant allegedlypoured some for the victim and the three began drinking. At some point soon thereafter, thevictim took off her shirt, unzipped her pants, and danced around the living room for defendantand his friend. At approximately 6:00 p.m., defendant's friend left and, according to the victim,[*2]she and defendant then engaged in oral, vaginal and anal sexwithout her consent. Defendant drove the victim back to her house later that evening and, shortlyafter her arrival, the victim disclosed that she had been raped.
Defendant was thereafter indicted on four counts of rape in the first degree, three counts ofcriminal sexual act in the first degree, rape in the third degree, criminal sexual act in the thirddegree and unlawfully dealing with a child in the third degree.[FN1]Following a jury trial, defendant was convicted of rape in the third degree, criminal sexual act inthe third degree and unlawfully dealing with a child in the third degree, but was acquitted of theremaining rape and criminal sexual act counts, all of which were based on forcible compulsion.Supreme Court sentenced defendant to one year in jail on each count, to run concurrently. Henow appeals.
Defendant claims that his convictions for rape in the third degree and criminal sexual act inthe third degree were against the weight of the evidence. At trial, defendant admitted that he andthe victim engaged in sexual intercourse and oral sexual conduct on the day in question, buttestified that the sexual encounter was consensual. Because a different verdict would not havebeen unreasonable in light of this testimony, we "must, like the trier of fact below, weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internal quotationmarks and citations omitted]; accordPeople v Shepherd, 83 AD3d 1298, 1298 [2011], lv denied 17 NY3d 809[2011]; see People v Stearns, 72AD3d 1214, 1215 [2010], lv denied 15 NY3d 778 [2010]).
Here, the victim testified to the numerous sexual acts that defendant subjected her to andasserted that, throughout the duration thereof, she cried, pushed defendant away and repeatedlysaid "no." Evidence was also presented that the victim informed an emergency room nurse whotreated her at the hospital that evening that she said "stop," "no" and was crying throughout theincident. Defendant argues that the victim's reliability is manifestly suspect and that hertestimony is unworthy of belief, citing the numerous inconsistencies within her trial testimony, aswell as between her testimony and her prior statements, as to the sequence and details of thesexual acts and where such acts took place within defendant's apartment, and her concessionduring cross-examination that "[she] can't remember everything exactly the way it happened."Although certain aspects of the victim's testimony are troublesome, she steadfastly maintainedthat she never consented to the sexual acts with defendant, and the various inconsistencies werefully explored during cross-examination and ultimately presented a credibility issue for the juryto resolve (see People v Shepherd, 83 AD3d at 1299; People v King, 79 AD3d 1277, 1279 [2010], lv denied 16NY3d 860 [2011]; People v Stearns, 72 AD3d at 1216; People v Weber, 25 AD3d 919,921 [2006], lv denied 6 NY3d 839 [2006]). While the jury's verdict acquitting defendantof all the forcible rape charges reflects that it rejected outright the victim's testimony that shecomplied with defendant's sexual directives because she feared defendant would kill her with hisgun, the jury was entitled to "accept some of the victim['s] testimony while rejecting otherportions of it" (People v Wagner, 72AD3d 1196, 1197 [2010], lv denied 15 NY3d 779 [2010]; see People v Kuykendall, 43 AD3d493, 495 [2007], lv denied 9 NY3d 1007 [2007]; People v Bush, 14 AD3d 804, 804-805 [2005], lv denied 4NY3d 852 [2005]). After independently reviewing and weighing the evidence, we areunpersuaded that the [*3]jury's credibility determinations shouldbe disturbed or that the verdict on these counts is against the weight of the evidence (seePeople v Shepherd, 83 AD3d at 1299; People v Beauharnois, 64 AD3d 996, 999 [2009], lv denied13 NY3d 834 [2009]). Furthermore, given the victim's testimony that defendant poured her a cupof wine and the testimonial and forensic evidence establishing that the victim was intoxicatedwhen she returned from defendant's apartment, defendant's conviction for unlawfully dealingwith a child in the third degree is likewise supported by the weight of the evidence (see People v St. Andrews, 82 AD3d1358, 1359-1360 [2011], lv denied 17 NY3d 821 [2011]).
Supreme Court properly precluded evidence regarding the victim's sexual behavior towardsdefendant's friend while at defendant's apartment pursuant to CPL 60.42. CPL 60.42, the RapeShield Law, prohibits the introduction of "[e]vidence of a victim's sexual conduct" in aprosecution for a sex offense under Penal Law article 130, unless one of five statutory exceptionsapplies. " 'The first four allow evidence of a complainant's prior sexual conduct in narrowlydefined factual circumstances,' and the fifth, the subdivision at issue here, 'vest[s] discretion inthe trial court' " (People v Scott, 16NY3d 589, 594 [2011], quoting People v Williams, 81 NY2d 303, 311 [1993]).Under this exception, evidence of a victim's prior sexual conduct may be introduced where suchevidence "is determined by the court after an offer of proof by the accused outside thehearing of the jury, or such hearing as the court may require, and a statement by the court of itsfindings of fact essential to its determination, to be relevant and admissible in the interests ofjustice" (CPL 60.42 [5] [emphasis added]; see People v Williams, 81 NY2d at311-312).[FN2]
Here, prior to the testimony of defendant's friend, the People stated on the record that it wastheir "understanding" that the friend would testify that the victim asked him to touch her sexuallyor that the friend touched her sexually while at defendant's apartment, and sought a rulingthat any such testimony would be inadmissible under CPL 60.42. Although provided with anopportunity to do so, defense counsel did not make an offer of proof, as was his obligation underCPL 60.42 (5), or otherwise clarify what the friend's testimony would be (see People vWilliams, 81 NY2d at 314-315). Evidence that the friend touched the victim sexually whileat defendant's apartment does not indicate that the victim was willing to engage in sexualrelations [*4]with anyone, including the friend, and is irrelevantto the issue of whether her sexual relations with defendant were consensual. Given theuncertainty as to what the friend's testimony would be, we cannot conclude that Supreme Courtabused its discretion in declining to admit the proposed evidence under the interests of justiceexception (see People v Schafer, 81AD3d 1361, 1363 [2011], lv denied 17 NY3d 861 [2011]; People v Monko,162 AD2d 553, 554-555 [1990], lv denied 76 NY2d 861 [1990]). Even were we toconclude that the offer of proof was sufficient, we would still find that Supreme Court actedwithin its discretion in precluding such evidence. It has been routinely held that a victim'swillingness to engage in sexual conduct with one person around the time of the incident inquestion is not indicative of a concomitant desire to consent to such behavior with another(see People v Wilhelm, 190 Mich App 574, 585, 476 NW2d 753, 759 [1991], lvdenied 439 Mich 1013 [1992]; Ellis v State, 181 Ga App 630, 632, 353 SE2d 822,825 [1987]; State v Bevins, 140 Vt 415, 419, 439 A2d 271, 273 [1981];Commonwealth v Folino, 293 Pa Super 347, 355-357, 439 A2d 145, 149-50 [1981]; see also People v McLaurin, 27 AD3d1117, 1118 [2006], lv denied 7 NY3d 759 [2006]; People v Grantier, 295AD2d 988, 988 [2002], lv denied 99 NY2d 535 [2002]). Indeed, the inference thatdefendant sought to establish by the proffered evidence is precisely that which the Rape ShieldLaw sought to prevent (see generally People v Williams, 81 NY2d at 312; Preiser,Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 60.48). Thus, it cannotbe said that Supreme Court's decision to exclude such evidence constituted an abuse of discretionunder the circumstances (see People v McLaurin, 27 AD3d at 1118; People vGrantier, 295 AD2d at 988; People v White, 261 AD2d 653, 655-656 [1999], lvdenied 93 NY2d 1029 [1999]).
Finally, defendant's challenge to Supreme Court's Allen charge was not preserved forour review by an objection at trial (see CPL 470.05 [2]; People v Pomales, 49 AD3d 962,964 [2008], lv denied 10 NY3d 938 [2008]; People v Frary, 29 AD3d 1223, 1225-1226 [2006], lvdenied 7 NY3d 788 [2006]). In any event, were we to consider the issue, we would find thatthe charge as a whole was balanced and proper rather than coercive (see People vAlvarez, 86 NY2d 761, 763 [1995]; People v Ford, 78 NY2d 878, 880 [1991]; People v Rich, 78 AD3d 1200,1201 [2010], lv denied 17 NY3d 799 [2011]; People v Price, 188 AD2d 681, 682[1992], lv denied 81 NY2d 891 [1993]).
Rose, Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The People subsequentlywithdrew one count of criminal sexual act in the first degree from the indictment.
Footnote 2: Although defendant now arguesthat the evidence precluded does not fall within the purview of the Rape Shield Law because itdid not constitute evidence of sexual conduct, but rather evidence of statementsmade by the victim concerning sexual conduct (see People v Jovanovic, 263 AD2d 182,193 [1999], appeal dismissed 95 NY2d 846 [2000]), this argument was not specificallymade to Supreme Court and, therefore, is not preserved for our review (see CPL 470.05[2]; People v Curry, 11 AD3d150, 156-157 [2004], lv denied 4 NY3d 743 [2004]; People v White, 261AD2d 653, 656 [1999], lv denied 93 NY2d 1029 [1999]). In addition, since defendant didnot assert a constitutional right to introduce the excluded evidence, his constitutional argument isalso unpreserved (see People v Angelo, 88 NY2d 217, 222 [1996]; People v Schafer, 81 AD3d 1361,1363 [2011], lv denied 17 NY3d 861 [2011]; People v Mitchell, 10 AD3d 554, 555 [2004], lv denied 3NY3d 759 [2004]).