| People v Tucker |
| 2017 NY Slip Op 02844 [149 AD3d 1261] |
| April 13, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v GregoryTucker, Appellant. |
Catherine A. Barber, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schenectady County (Giardino,J.), rendered February 28, 2014, upon a verdict convicting defendant of the crime of rape in thefirst degree.
Defendant was charged in an indictment with rape in the first degree and menacing in thesecond degree as the result of a 2011 incident wherein he allegedly, among other things, sexuallyassaulted a physically helpless victim. A trial ended in his acquittal on the menacing count and ahung jury on the rape count. Defendant was thereafter convicted, upon a retrial, of first degreerape. County Court sentenced defendant, a second felony offender, to 20 years in prison and 10years of postrelease supervision. Defendant now appeals.
Defendant asserts that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence, alleging a dearth of proof as to whether the victim was"incapable of consent[ing] [to sexual intercourse] by reason of being physically helpless" (PenalLaw § 130.35 [2]; see Penal Law § 130.00 [7]). In that regard,the victim testified that she was in defendant's apartment at his invitation and smokingmarihuana. Defendant gave her two pills to "calm [her] down" and, despite already havingsmoked marihuana and being on an array of medication for mental health issues, she felt"pressured" to take them and did so. The victim then lay inert on his bed, fully clothed, and lostconsciousness while defendant crawled on top of her and kissed her. She woke up a few minuteslater with vaginal discomfort and no pants or underwear on, leading her to realize that defendanthad violated her while she was asleep. Her [*2]suspicions wereconfirmed by a sexual assault examination and DNA testing.[FN*] Other tests revealed that the victim had doxepinin her system, a drug with sedative properties that she had not been prescribed. The jury alsoheard Kevin Allen testify as to conversations he had with defendant, while the two were jailedtogether, in which defendant recounted giving the victim his "special knockout pills" and havinghis way with her after she became insensible. This evidence was legally sufficient to support thefinding that the victim was physically helpless and unable to consent to defendant having sexwith her (see People v Stahl, 141AD3d 962, 963-964 [2016], lv denied 28 NY3d 1127 [2016]; People v Kessler, 122 AD3d 1402,1403 [2014], lv denied 25 NY3d 990 [2015]). Further, deferring to the jury's decision tocredit the testimony of the victim and Allen notwithstanding defendant's strenuous efforts to calltheir accounts into question, we conclude that the verdict was "supported by the weight of thecredible evidence" (People v Stahl, 141 AD3d at 964; see People v Shepherd, 83 AD3d 1298, 1299 [2011], lvdenied 17 NY3d 809 [2011]; Peoplev Fuller, 50 AD3d 1171, 1174 [2008], lv denied 11 NY3d 788 [2008]).
Defendant next argues that he did not voluntarily consent to a search of his apartment andthat, as such, evidence recovered during the search should have been suppressed. Investigatorsmust normally obtain a warrant, founded upon probable cause, to search a residence, but "one ofthe limited exceptions to the warrant requirement is voluntary consent" (People v Ortiz, 141 AD3d 872,874 [2016]; see People v Gonzalez, 39 NY2d 122, 127 [1976]; People v Madden,58 AD3d 1023, 1025 [2009]). The suppression hearing testimony reveals that a police detectiveand a patrol officer visited defendant at his apartment after the rape accusation surfaced.Defendant invited them in, at which point the detective explained why they were there and askedif defendant would allow an evidence technician to take his bedding and snap a few photographsof the apartment. Defendant agreed after some discussion, then reviewed and executed a writtenconsent form that advised him of his right to refuse to consent to a search. Defendant was not incustody or under arrest at any point that day, appeared lucid and had no obvious difficultyreading the form. The suppression court found from the foregoing that the People met their"heavy burden" of showing that defendant freely consented to a search of his residence, and weconcur with that assessment (People v Gonzalez, 39 NY2d at 128; see People v Curtis, 144 AD3d1199, 1200 [2016]; People v Garnsey, 288 AD2d 761, 762 [2001], lv denied97 NY2d 754 [2002]).
Defendant's claim of ineffective assistance is also unpersuasive. He primarily questionsdefense counsel's failure to impeach the victim with inconsistent statements from her testimonyat the first trial. Defense counsel instead cross-examined the victim regarding a prior accusationof rape that she admitted was false and broader mental health concerns that included her being aself-described "pathological liar" who had experienced hallucinations of sexual assault in thepast. In our view, "defendant has not met his high burden of demonstrating the absence ofstrategic or other legitimate explanations" for avoiding issues that could well have distracted thejury from a potent attack on the victim's credibility (People v Garcia, 131 AD3d 732, 735 [2015][*3][internal quotation marks, brackets and citations omitted], lvdenied 27 NY3d 997 [2016]; seePeople v Wiltshire, 96 AD3d 1227, 1229 [2012], lv denied 22 NY3d 1204[2014]). Defendant also complains that prior counsel should have moved to suppress evidencedue to his warrantless arrest in his apartment but, insofar as the record reflects that defendantvoluntarily accompanied investigators to the police station for questioning on the day he wasarrested (see People v Locke, 25AD3d 877, 879 [2006], lv denied 6 NY3d 835 [2006]; People v Baird, 111AD2d 1044, 1045 [1985], lv denied 66 NY2d 761 [1985]), counsel was not ineffective infailing to make a doomed motion to suppress on those grounds (see People v Carver, 27 NY3d418, 420-421 [2016]). Defendant points to other alleged missteps as well, but our review ofthe record as a whole satisfies us that he received meaningful representation (see People vBaldi, 54 NY2d 137, 147 [1981]; People v Wiltshire, 96 AD3d at 1229).
Defendant's remaining arguments warrant little discussion. With respect to his efforts to havenew counsel assigned prior to retrial, "[w]hile defendant expressed some dissatisfaction withcounsel, there was not a showing of sufficient good cause to warrant a substitution of counsel"(People v Davenport, 58 AD3d 892, 895 [2009], lv denied 12 NY3d 782 [2009];see People v Puccini, 145 AD3d1107, 1109 [2016]). Lastly, after reviewing defendant's prior criminal history and the natureof the offense for which he was convicted, we do not perceive the sentence imposed to be harshor excessive (see People v Bjork,105 AD3d 1258, 1264 [2013], lv denied 21 NY3d 1040 [2013], cert denied571 US —, 134 S Ct 1306 [2014]; People v Shepherd, 83 AD3d at1301-1302).
Garry, J.P., Egan Jr., Rose and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant refused to submit to acourt-ordered buccal swab DNA test and, as a result, investigators obtained his DNA from adiscarded juice cup. Contrary to defendant's contention, County Court properly instructed the juryas to how those facts could constitute proof of his consciousness of guilt (see People vMacDonald, 89 NY2d 908, 910 [1996]; People v Demetsenare, 243 AD2d 777, 780[1997], lv denied 91 NY2d 833 [1997]; see also CJI2d[NY] Consciousness ofGuilt).