| People v Ackerman |
| 2016 NY Slip Op 05592 [141 AD3d 948] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Wan Tu Ackerman, Appellant. |
Matthew C. Hug, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered May 1, 2014, upon a verdict convicting defendant of the crime of attemptedrape in the first degree.
In a single-count indictment, defendant was charged with attempted rape in the firstdegree. While defendant's first trial resulted in a mistrial, he was subsequently convictedafter a second trial. County Court thereafter sentenced defendant, as a second felonyoffender, to a prison term of seven years followed by 15 years of postrelease supervision.Defendant appeals. We affirm.
Defendant initially contends that the evidence was legally insufficient to support theconviction because the People failed to prove the element of forcible compulsion. Asdefendant's motion to dismiss made at the close of the People's proof did not rely on thisspecific ground in seeking dismissal, this contention is unpreserved for review (see People v Newkirk, 75AD3d 853, 855 [2010], lv denied 16 NY3d 834 [2011]). In light ofdefendant's further contention that the verdict was against the weight of the evidence,which is not subject to preservation requirements (see People v Tompkins, 107 AD3d 1037, 1038 [2013],lv denied 22 NY3d 1044 [2013]), we review the evidence adduced as to eachelement of the crime for which defendant was convicted (see People v Danielson, 9NY3d 342, 349 [2007]). Inasmuch as a contrary verdict would not have beenunreasonable, we "must, like the trier of fact below, weigh the relative probative force ofconflicting testimony and [*2]the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d633, 643 [2006] [internal quotation marks and citations omitted]; see People v Hoppe, 96 AD3d1157, 1158 [2012], lv denied 19 NY3d 1026 [2012]; People v Plaisted, 2 AD3d906, 907-908 [2003], lv denied 2 NY3d 744 [2004]).
The evidence at trial reveals that after a night of socializing, the victim invited afriend and defendant, with whom she had a prior casual sexual relationship, to herapartment where they had more alcoholic drinks and played cards. In the early morning,defendant eventually fell asleep on a couch in the living room. The victim changed intoher pajamas and went to sleep in her bedroom. She then woke up naked with defendantlying on top of her. The victim testified that she was lying face down on her stomach butfelt pressure on the back of her neck and legs. She also felt that her legs were being priedapart and that defendant tried to engage in sexual intercourse. The victim testified thatshe could not get up because defendant was still on top of her and holding the back ofher neck. In response to the victim's resistence and escalating protestations, defendanttold her to "stop[,] . . . there [are] kids here."[FN*] According to the victim, these wordsmade her feel "afraid" and "scared" and she did not want to alarm the children in theapartment. Defendant was ultimately unsuccessful in penetrating the victim's vagina.
Upon our independent review of the evidence, including the presence of semen onthe victim's bed sheet and pajamas, which was linked to defendant through DNA testing,we find that the verdict was supported by the weight of the evidence (see People v Nehma, 101AD3d 1170, 1170-1171 [2012]; People v Texidor, 71 AD3d 1190, 1192-1193 [2010], lvdenied 14 NY3d 893 [2010]; People v Jackson, 290 AD2d 644, 646 [2002],lv denied 98 NY2d 711 [2002]). We disagree with defendant that the victim'stestimony about the incident in the instant trial materially differed from her testimonygiven at the first trial, and, to the extent that any inconsistencies existed, they presented acredibility issue for the jury's assessment (see People v Brabham, 126 AD3d 1040, 1043 [2015],lv denied 25 NY3d 1160 [2015]; People v Izzo, 104 AD3d 964, 966-967 [2013], lvdenied 21 NY3d 1005 [2013]). Defendant's argument that the victim was unworthyof belief due to her history of lying and a prior criminal conviction likewise pertains toher credibility for the jury to resolve (see People v Blackman, 90 AD3d 1304, 1308 [2011], lvdenied 19 NY3d 971 [2012]). According deference to the jury's credibilitydeterminations, we cannot conclude that the verdict was contrary to the weight theevidence (see People v Hoppe, 96 AD3d at 1160; People v Newkirk, 75AD3d at 855-856).
We also reject defendant's claim that he received the ineffective assistance ofcounsel. Defendant's complaints that his counsel failed to object to the admissibility ofthe DNA evidence or to request attempted rape in the third degree as a lesser includedcharge concern trial strategies which, on this record, do not rise to the level of ineffectiveassistance of counsel (seePeople v Briskin, 125 AD3d 1113, 1122 [2015], lv denied 25 NY3d1069 [2015]). Similarly, the failure of defense counsel to request an intoxication chargedoes not amount to ineffective assistance inasmuch as this charge would have beeninconsistent with the defense theory that there was no sexual contact with the victim (see People v Van Ness, 43AD3d 553, 555 [2007], lv denied 9 NY3d 965 [2007]). Defendant'sremaining arguments on this issue are either belied by the record or without merit.Where, as here, defense counsel vigorously cross-examined the People's forensic expert,as well as other witnesses, and called a witness on defendant's behalf, we conclude thatdefendant received meaningful representation (see People v McCloud, 121 AD3d 1286, 1291 [2014],lv denied 25 NY3d 1167 [2015]; People v Jones, 101 AD3d 1241, 1243[*3][2012], lv denied 21 NY3d 944 [2013]; People v Fuller, 50 AD3d1171, 1176-1177 [2008], lv denied 11 NY3d 788 [2008]).
Finally, we disagree with defendant's assertion that the sentence was harsh andexcessive. County Court did not impose the maximum permissible sentence (seePenal Law § 70.06 [6] [b]), and, considering defendant's prior criminalhistory, we see no abuse of discretion or the existence of extraordinary circumstanceswarranting a reduction of defendant's sentence in the interest of justice (see People v Dean, 122 AD3d1004, 1005 [2014]; Peoplev Masters, 36 AD3d 959, 960-961 [2007], lv denied 8 NY3d 925[2007]).
McCarthy, J.P., Rose, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The victim lived in herapartment with her cousin and her cousin's children.