| People v Melendez |
| 2016 NY Slip Op 02678 [138 AD3d 1159] |
| April 7, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAbel J. Melendez, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Schenectady County(Catena, J.), rendered May 2, 2012, upon a verdict convicting defendant of the crimes ofrape in the first degree and petit larceny.
The victim was walking on a city street in Schenectady County during the earlymorning hours of October 16, 2010 when defendant approached her on a bicycle. Heattempted to converse with her, continued to follow her and eventually pushed her off thesidewalk up a hill and onto a picnic table. He then allegedly forced her to have sexualintercourse with him and took her cell phone as he fled. Upon his indictment for rape inthe first degree and robbery in the third degree, a jury trial ensued resulting in a verdict ofguilty of rape in the first degree and petit larceny as a lesser included offense of therobbery count. Defendant was sentenced to an aggregate prison term of 20 years togetherwith postrelease supervision and directed to pay $450 in restitution. He appeals.
Focusing primarily on the element of forcible compulsion, defendant argues that theverdict was not supported by legally sufficient evidence and was against the weight ofthe evidence. "[T]he element of forcible compulsion is examined through the state ofmind produced in the victim, and relevant factors include the age of the victim, therelative size and strength of the defendant and victim, and the nature of the defendant'srelationship to the victim" (People v Sehn, 295 AD2d 749, 750 [2002], lvdenied 98 NY2d 732 [2002] [internal quotation marks and citations omitted]; accord People v Lancaster, 121AD3d 1301, 1303 [2014], lv denied 24 NY3d 1121 [2015]).
[*2] Proof at trial included testimony by the victim, who atthe time of the incident was a 21-year-old student home from college for a short visit.After meeting some friends for drinks, she decided to walk home and, while doing so,defendant began riding a bicycle next to her and talking to her. The victim did not knowdefendant, his presence made her uncomfortable and she ultimately attempted to run therest of the way home, but she became winded and stopped. Defendant then grabbed hershoulders and pushed her off the street and onto a picnic table. Although the victimstruggled to get away, she was unable to free herself from the strength of his grip. As shecontinued to attempt to fight him off, he grabbed her around the neck; the victimexplained that the more she fought, the more pressure he applied, causing her to havetrouble breathing. Defendant's anger and intensity increased and, unable to free herselfand fearing "something worse" might happen, the victim stopped fighting as defendantpenetrated her while keeping his hand on her neck. Defendant then fled and thevictim—disheveled and crying hysterically—made it home where she toldher mother that she had been raped. Her mother immediately called the police. Theinvestigation eventually led the police to defendant and, although his statements were notconsistent, he acknowledged sexual intercourse with the victim, but claimed in one of hisstatements that she did not say "no" until after sexual intercourse had commenced.Viewed in the light most favorable to the People (see People v Danielson, 9 NY3d 342, 349 [2007]), there islegally sufficient evidence of forcible compulsion, as well as the remaining elements ofrape in the first degree (seePeople v Blackman, 90 AD3d 1304, 1306-1307 [2011], lv denied 19NY3d 971 [2012]; People v McKee, 299 AD2d 575, 577 [2002], lvdenied 100 NY2d 596 [2003]).
With respect to the weight of the evidence, a different verdict would not have beenunreasonable given defendant's indication in one of his statements that the sex wasconsensual, as well as his contention that the victim should have had more severebruising if the attack had occurred as she described. Nonetheless, these issues turned inlarge measure on credibility determinations, and we discern no reason to depart from thejury's resolution of those matters (see People v McCray, 102 AD3d 1000, 1004 [2013],affd 23 NY3d 193 [2014]; People v Mitchell, 57 AD3d 1308, 1309 [2008]; People v Littebrant, 55 AD3d1151, 1155 [2008], lv denied 12 NY3d 818 [2009]). Nor is the jury'sacquittal on the robbery charge inconsistent with a finding of force in the rape given that,among other things, defendant's own statement reflects that he removed the phone fromthe victim's purse as he was leaving the scene following the sexual encounter where forcehad been employed.[FN*] After independently weighing theevidence and considering it in a neutral light, we are unpersuaded that the verdict wasagainst the weight of the evidence (see People v Hadfield, 119 AD3d 1224, 1226 [2014], lvdenied 24 NY3d 1002 [2014]; People v Hoppe, 96 AD3d 1157, 1159-1160 [2012], lvdenied 19 NY3d 1026 [2012]).
Defendant also asserts that the prosecutor improperly shifted the burden to him byremarks during summation that the victim's testimony regarding consent wasuncontradicted and that defendant's attorney was the only person claiming thatconsensual sex had occurred. Shortly after the comment, County Court interjected acurative instruction and the prosecutor then clarified to the jury that she was comparingdefendant's written statement to the victim's testimony regarding consent. Viewing theprosecutor's comment in the context of the entire [*3]summation and noting County Court's prompt curativeinstruction, we find no reversible error (see People v Mitchell, 129 AD3d 1319, 1321 [2015], lvdenied 26 NY3d 1041 [2015]; People v Hatchcock, 96 AD3d 1082, 1085 [2012], lvdenied 19 NY3d 997 [2012]; People v Hathaway, 159 AD2d 748, 752[1990]).
Finally, defendant's challenge to the $450 restitution awarded by County Court is notpreserved for review since he failed to request a hearing and did not otherwise object tosuch amount at sentencing (seePeople v Bethea, 133 AD3d 1033, 1034 [2015]; People v Bressard, 112 AD3d988, 989 [2013], lv denied 22 NY3d 1137 [2014]).
Garry, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:We further observe thatdefendant does not contend that the verdict is repugnant and, "[i]n such a situation, theCourt of Appeals has noted that 'it is imprudent to speculate concerning the factualdeterminations that underlay the verdict' " (People v Henry, 129 AD3d 1334, 1334 [2015], lvdenied 26 NY3d 930 [2015], quoting People v Horne, 97 NY2d 404, 413[2002]).