| People v Beliard |
| 2012 NY Slip Op 08571 [101 AD3d 1236] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ygord Beliard,Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.),rendered June 24, 2004, upon a verdict convicting defendant of the crimes of rape in the seconddegree, attempted sodomy in the second degree and endangering the welfare of a child.
In December 2002, a 14-year-old girl (hereinafter the victim) and a 12-year-old girl(hereinafter the younger victim) reported that two men had sexually assaulted them in anapartment in the City of Troy, Rensselaer County. Codefendant Edmond Joseph was indicted inMarch 2003 for offenses pertaining to the younger victim and, in the same indictment, wasjointly charged with Steve Val for sexual offenses arising from a different incident. Defendantwas later separately indicted for various crimes pertaining to the assault on the victim. ThePeople thereafter successfully moved to sever the charges against Joseph pertaining to theyounger victim from the March 2003 indictment and consolidate them with the indictmentagainst defendant.
After conducting a Wade hearing, County Court ruled, among other things, that thevictim's identification of defendant as her attacker in a photo array was admissible. Following ajoint jury trial of defendant and Joseph, defendant was acquitted of all charges alleging use offorcible compulsion, and convicted of each of the charges arising from the victim'sage—that is, one count each of rape in the second degree, attempted sodomy in the seconddegree and [*2]endangering the welfare of a child. County Courtimposed an aggregate prison term of 3
Initially, defendant argues that the charges against him were improperly consolidated withthose against Joseph as they involved two different victims and thus did not constitute "the samecriminal transaction" (CPL 200.40 [1] [c]; see CPL 40.10 [2]; 200.40 [2]). In this regard,the People contended that defendant and Joseph met the two victims on the street and lured themtogether to Joseph's apartment, where, in the same place and at the same time, defendantassaulted the victim while Joseph assaulted the younger victim. The accounts given by thevictims of these events and the aftermath were largely identical. Even if defendant—whosetrial counsel conceded that the charges were "technically joinable" while opposing consolidationon other grounds—had preserved this claim, we would have found that the alleged conductof defendant and Joseph was "so closely related and connected in point of time and circumstanceof commission as to constitute" the same criminal transaction for consolidation purposes (CPL40.10 [2]; see People v Vogel, 216 AD2d 857, 857 [1995], lv denied 86 NY2d804 [1995]; People v Ramjit, 203 AD2d 488, 490 [1994], lv denied 84 NY2d 831[1994]).
Defendant further claims that the consolidation violated his right to confront witnesses asenunciated in Crawford v Washington (541 US 36 [2004]) and Bruton v UnitedStates (391 US 123 [1968]) in that a redacted statement made by Joseph to police wasadmitted at the joint trial, where Joseph did not testify. This argument is unpreserved, as it wasneither raised in opposition to the application to consolidate nor in objecting to the introductionof Joseph's statement (see People vJenkins, 93 AD3d 861, 861 [2012], lv denied 19 NY3d 962 [2012]; People vSerrano, 256 AD2d 175, 176 [1998], lv denied 93 NY2d 878 [1999]). In any event,no modification is warranted as there was no Crawford or Bruton violation;Joseph's statement named Val as the second man involved in the crimes, did not mentiondefendant and implicated him only when linked with other evidence at trial (see People v Pagan, 87 AD3d1181, 1183-1185 [2011], lv denied 18 NY3d 885 [2012]; compare People v Hardy, 4 NY3d192, 198-199 [2005]; People vPinto, 56 AD3d 956, 958 [2008]).
Next, we reject defendant's contention that County Court abused its discretion during theWade hearing by preventing his counsel from inquiring into the victim's initialidentification of Val as her attacker in a photo array that she viewed shortly after the attack. Thevictim later told police that she had been mistaken and identified defendant in a different photoarray. "[T]he purpose of a Wade hearing is not to determine whether there areinconsistent identifications nor to obtain more fodder for cross-examination . . .[but] to examine police procedures surrounding an out-of-court identification of the defendant fora taint of suggestiveness" (Lynn v Bliden, 443 F3d 238, 249 [2d Cir 2006], certdenied 549 US 1257 [2007] [internal quotation marks omitted]; see People v Chipp,75 NY2d 327, 335-336 [1990], cert denied 498 US 833 [1990]). The first photo array didnot include a picture of defendant and no claim was made that it was otherwise undulysuggestive; the mere fact that the victim viewed successive arrays did not taint the procedure inwhich she ultimately identified defendant (compare People v McKinley, 283 AD2d 777,777-778 [2001], lv denied 97 NY2d 731 [2002]; People v Lee, 207 AD2d 953,953 [1994], lv denied 85 NY2d 864 [1995]). Moreover, defense counsel was permitted toinquire into any interactions between police and the victim that might have influenced herdetermination that her first identification had been mistaken or her subsequent identification ofdefendant; in this regard, the investigator who conducted the identifications testified that no suchsuggestive interactions took place. Under these circumstances, the initial misidentification was oflimited relevance, and the court did not abuse its "broad discretion" in limiting cross-examinationon this [*3]issue (People v Roussopoulos, 261 AD2d 559,559 [1999], lv denied 93 NY2d 978 [1999]).[FN*]
Defendant next contends that his convictions were contrary to the weight of the evidence.Where, as here, acquittals would not have been unreasonable, this Court "must, like the trier offact below, weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]; accord People v Shepherd, 83 AD3d 1298, 1298 [2011], lvdenied 17 NY3d 809 [2011]). Although the verdict acquitting defendant of several chargessuggests that the jury did not credit some of the victim's claims, it was entitled to "accept some of[her] testimony while rejecting other portions of it" (People v Wagner, 72 AD3d 1196, 1197 [2010], lv denied15 NY3d 779 [2010]; see People vKuykendall, 43 AD3d 493, 495 [2007], lv denied 9 NY3d 1007 [2007]). Thejury evidently chose to credit the victim's account of defendant's sexual contact with her, whichincluded the elements of the crimes of which he was ultimately convicted; further, her testimonywas corroborated in part by the findings of a sexual assault nurse examiner who found, amongother things, defendant's blood on the victim's pants and indicia that she had engaged in sexualintercourse. Deferring to the jury's credibility assessments, we find no reason to disturb theconvictions (see People vSimonetta, 94 AD3d 1242, 1244 [2012], lv denied 19 NY3d 1029 [2012]; People v Beauharnois, 64 AD3d996, 998-999 [2009], lv denied 13 NY3d 834 [2009]; People v Bush, 14 AD3d 804,804-805 [2005], lv denied 4 NY3d 852 [2005]).
County Court did not err in directing defendant's sentences for the rape and attemptedsodomy convictions to run consecutively, as the elements of these crimes "are distinct andrequire separate, discrete acts" (People v MacGilfrey, 288 AD2d 554, 557 [2001], lvdenied 97 NY2d 757 [2002]; accord People v Lussier, 298 AD2d 763, 765 [2002],lv denied 99 NY2d 630 [2003]). Despite defendant's lack of prior criminal history, wefind no abuse of discretion or extraordinary circumstances in the court's imposition of themaximum permissible sentences in view of the exploitative nature of his crimes and their impacton his young victim (see People vLanfair, 18 AD3d 1032, 1034 [2005], lv denied 5 NY3d 790 [2005]; Peoplev MacGilfrey, 288 AD2d at 556-557). Defendant's remaining contention has been examinedand found to be without merit.
Peters, P.J., Rose, Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The victim was fullycross-examined at trial about the initial misidentification.