| People v Jackson |
| 2015 NY Slip Op 04173 [128 AD3d 1181] |
| May 14, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vThomas Jackson, Appellant. |
Mitch Kessler, Cohoes, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter Willis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (Milano, J.), rendered June28, 2012 in Schenectady County, upon a verdict convicting defendant of the crimes ofpredatory sexual assault and criminal sexual act in the first degree.
In March 2011, victim A realized that she had locked her keys in her vehicle as sheprepared to return home from a nightclub. She was previously acquainted withdefendant, who invited her to leave the nightclub with him upon the understanding that afriend of his could help her in the morning. The two proceeded to a motel room, wheredefendant forced victim A to fellate him and raped her. Victim A escaped and reportedthe incident to police, but defendant had already fled when they arrived on the scene.Victim B worked at the nightclub where the first incident began and, in April 2011, shemet defendant for a drink shortly before she was scheduled to work. Victim B gavedefendant a ride as she drove to work and, as she was running early, defendant asked herto stop for a few minutes. They stopped in a park, where defendant forced her onto thepassenger seat of her vehicle and raped her. Defendant left after apologizing andthrowing money at victim B, who promptly reported the incident to her coworkers andpolice.
Defendant was apprehended and charged in a four-count indictment with crimesstemming from both incidents. Following a jury trial, he was convicted of predatorysexual assault and criminal sexual act in the first degree. Supreme Court imposedconcurrent sentences upon defendant, a second felony offender, of 25 years to life inprison for the predatory sexual [*2]assault conviction,and 25 years in prison, followed by 25 years of postrelease supervision, for the criminalsexual act in the first degree conviction. Defendant appeals, and we now affirm.
Initially, we reject defendant's contention that the verdict was against the weight ofthe evidence. Assuming that a different verdict would not have been unreasonable, we"must, like the trier of fact below, 'weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony' " (People v Bleakley, 69 NY2d 490, 495 [1987], quotingPeople ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; accord People v Romero, 7NY3d 633, 643 [2006]). The various credibility challenges faced by the victimswere fully explored by defendant at trial, including inconsistencies in their stories and thelack of physical evidence to conclusively show that either had been sexually assaulted.Both victims detailed how the assaults occurred, however, and other witnesses testifiedthat they subsequently behaved in a manner consistent with having been assaulted.Moreover, investigators found crime scenes that matched the accounts given by the twovictims. A mutual acquaintance of victim A and defendant further testified that she spoketo defendant shortly after the first assault occurred, and that defendant had offered to"give [victim A] $1,000 if she [kept] her mouth shut."[FN*] The jury credited this extensiveevidence of defendant's guilt and, according proper deference to that determination, wefind that the verdict was not against the weight of the evidence (see People v McCray, 102AD3d 1000, 1003-1004 [2013], affd 23 NY3d 193 [2014]; People v Hoppe, 96 AD3d1157, 1158 [2012], lv denied 19 NY3d 1026 [2012]).
Defendant next argues that he was deprived of a fair trial due to an erroneousSandoval ruling by Supreme Court. In that regard, "[a] criminal defendant whochooses to testify may be cross-examined concerning prior criminal, vicious or immoralacts that bear logically on that individual's credibility as a witness" (People vGray, 84 NY2d 709, 712 [1995]; see People v Smith, 18 NY3d 588, 593 [2012]). It isimpermissible to use a "juvenile delinquency adjudication as an impeachment weapon"because it is not a conviction for a crime, although a defendant may be cross-examinedregarding the bad acts underlying the adjudication (People v Gray, 84 NY2d at712; accord People vLemery, 107 AD3d 1593, 1594 [2013], lv denied 22 NY3d 956 [2013]).Supreme Court was advised of that distinction but, nonetheless, erroneously permittedprospective cross-examination on "the fact that . . . defendant wasadjudicated as a juvenile delinquent" for acts that would have constituted the crime ofrobbery in the second degree had they been committed by an adult. Defendant ultimatelyelected not to testify, but harmless error analysis in the Sandoval context "doesnot involve speculation as to whether a defendant would have testified if the legal errorhad not occurred" (People v Williams, 56 NY2d 236, 240 [1982]; accord People v Grant, 7 NY3d421, 425 [2006]). Defendant extensively attacked the credibility of the victims byother means and, given the overwhelming evidence of his guilt and the absence of any"significant probability that the jury would have acquitted had the error not occurred," wefind that the error was a harmless one (People v Grant, 7 NY3d at 424; see People v Henderson, 22AD3d 883, 884 [2005], lv denied 6 NY3d 776 [2006]).
Defendant's remaining contentions do not require extended discussion. Defendantvalidly waived his right to be present at sidebar conferences after being advised of thatright by [*3]Supreme Court and consulting with defensecounsel, with any deficiency in Supreme Court's articulation of that right having beenremedied by the detailed written waiver that defendant executed in open court (see People v Jackson, 59 AD3d736, 736 [2009], lv denied 12 NY3d 916 [2009]; People v Abdullah, 28 AD3d940, 941 [2006], lvs denied 7 NY3d 784 [2006]; compare People vElliot, 299 AD2d 731, 734 [2002]). Moreover, inasmuch as "the record reflects thattrial counsel 'engaged in relevant motion practice, presented appropriate opening andclosing statements, effectively cross-examined the People's witnesses and registeredappropriate objections,' " we are satisfied that defendant received meaningfulrepresentation (People vFisher, 126 AD3d 1048, 1052 [2015], quoting People v Cade, 110 AD3d1238, 1242 [2013], lv denied 22 NY3d 1155 [2014]). Defendant's remainingcontentions, including those advanced in his pro se supplemental brief, have beenexamined and found to be lacking in merit.
Peters, P.J., Lahtinen and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent thatdefendant's challenge to the admissibility of that statement is preserved for our review,Supreme Court properly allowed it into evidence as an "inculpatory party admission[ ]"(People v Galloway, 93AD3d 1069, 1071 n 1 [2012], lv denied 19 NY3d 996 [2012]; People v Cruz, 41 AD3d893, 896 [2007], lv denied 10 NY3d 933 [2008]).