| People v Wright |
| 2017 NY Slip Op 08414 [155 AD3d 1452] |
| November 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Patrick Wright, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Garry, J.P. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered March 28, 2016, upon a verdict convicting defendant of the crimes of criminalsexual act in the third degree (three counts), rape in the third degree, endangering the welfare of achild and unlawfully dealing with a child in the first degree.
In 2013, the 15-year-old victim reported that, two months earlier, defendant—then 30years old—had sexually assaulted her while the two of them were "hang[ing] out,"smoking marihuana and cigarettes and drinking alcohol. Defendant was thereafter charged in a10-count indictment related to the incident and was convicted on several counts following a jurytrial. On appeal, this Court reversed the judgment of conviction on the basis of prosecutorialmisconduct during summation, and directed a new trial (133 AD3d 1097 [2015]). In February2016, defendant was charged in a renumbered indictment with criminal sexual act in the thirddegree (three counts), rape in the third degree, endangering the welfare of a child and unlawfullydealing with a child in the first degree. Following a second jury trial, defendant was found guiltyas charged and sentenced to an aggregate prison term of 11 years with three years of postreleasesupervision. Defendant appeals.
Defendant contends that the verdict is against the weight of the evidence as the victim'stestimony, which was the only salient evidence against him, contained various inconsistences and[*2]was thus wholly incredible. Where, as here, an acquittalwould not have been unreasonable, our weight of the evidence review requires us to view theevidence in a neutral light and "weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony" (Peoplev Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; accord People v Mosley, 121 AD3d1169, 1170 [2014], lv denied 24 NY3d 1086 [2014]). Reversal may be warrantedwhere the jury has failed to give the evidence the appropriate weight (see People v Romero, 7 NY3d633, 643-644 [2006]; People v St.Andrews, 82 AD3d 1356, 1358 [2011]). Testimony may be found incredible as a matterof law where it is "manifestly untrue, physically impossible, contrary to experience, orself-contradictory," and, in such case, it may be "totally disregarded as being without evidentiaryvalue" (People v Holliman, 12AD3d 773, 775 [2004] [internal quotation marks and citation omitted], lvs denied 4NY3d 764, 831 [2005]; see People v Neil, 289 AD2d 611, 612 [2001], lv denied97 NY2d 758 [2002]).
The victim testified that, for two years prior to the attack, defendant would invite her tosmoke cigarettes and marihuana and consume alcohol with him. On February 2, 2013, defendantsent the victim a text message inviting her to join him at his mother's house, located in theimmediate vicinity of the victim's home and visible from her bedroom window. Just before 11:00p.m., after waiting for defendant's brother to leave for his evening shift at work, the victim snuckout of her home and met defendant there. She knocked at the back door and defendant let her inand gave her a cigarette. The victim and defendant were alone in the house, as the other residentshad left to travel. The victim consistently testified that, over the course of the evening, defendantmade her four mixed drinks using a bottle labeled "vodka," and that, outside of her presence inhis mother's bedroom, he added to each drink an ingredient that made it red in color and whichtasted like cherry or raspberry. She and defendant also smoked "6 bowls" of marihuana using aglass bowl; her prior statement to investigators that defendant had also told her that he had acorncob pipe did not contradict this testimony. The testimony of defendant's brother that thehouse did not smell of marihuana or cigarette smoke when he returned more than four hours afterthe incident presented a credibility issue for the jury to resolve (see People v Boyce, 2 AD3d 984,986 [2003], lv denied 2 NY3d 796 [2004]).
In describing the attack, the victim testified that, after smoking marihuana and beforefinishing her fourth drink, she could not feel her legs and told defendant that she felt "numb."Defendant then moved to where the victim was sitting and attempted to kiss her. When sherefused, defendant took control of her hands and pulled down her pants. Defendant then forcedthe victim to perform oral sex on him and subjected her to oral sex, digital penetration of hervagina and sexual intercourse. The victim testified that defendant subjected her to sexualintercourse for a prolonged period, lasting from 60 to 80 minutes. Thereafter, defendant priedopen the victim's mouth and ejaculated into it, prompting her to vomit. He threatened the victimthat, if she told anyone about the attack, he would "kill her and whoever [she] told." The victimfurther recalled that defendant pulled out some of her hair, but acknowledged that she had notdisclosed this detail to investigators. She stated that the attack ended around 3:00 a.m., and sheimmediately collected her clothes and ran naked from the house to her family's garage. Thetestimony of defendant's grandmother, with whom he lived at the time, confirmed that on thenight in question defendant went to his mother's home and did not return to the grandmother'shome until 4:00 a.m. Defendant did not testify.
Contrary to defendant's contentions, the victim's delay in reporting the incident and her [*3]initial, but corrected, mistake about its date,[FN*] her estimation as to the durationof the attack and other alleged minor inconsistencies did not render her testimony incredible as amatter of law (see People vHadfield, 119 AD3d 1217, 1220 [2014], lv denied 25 NY3d 989 [2015]; People v Fernandez, 106 AD3d1281, 1285 [2013]; People vShofkom, 63 AD3d 1286, 1287 [2009], lv denied 13 NY3d 799 [2009],appeal dismissed 13 NY3d 933 [2010]). These issues were fully explored in a lengthycross-examination, and the jury was entitled to credit the victim's testimony (see People v VanDeusen, 129 AD3d1325, 1326 [2015], lv denied 26 NY3d 972 [2015]; People v Santiago, 118 AD3d1163, 1165 [2014], lv denied 24 NY3d 964 [2014]). We find the victim's testimonyto have been sufficiently consistent as to the material elements of the crimes upon whichdefendant was convicted, and note that the verdict need not be supported by physical evidence.Accordingly, upon our review of the record and deferring to the jury's credibility determinations(see People v Bleakley, 69 NY2d at 495), we do not find that the verdict was against theweight of the evidence (see People vThornton, 141 AD3d 936, 938 [2016], lv denied 28 NY3d 1151 [2017]; People v Knapp, 138 AD3d 1157,1158 [2016]; People v Thiel, 134AD3d 1237, 1239-1240 [2015], lv denied 27 NY3d 1156 [2016]; People v Warner, 69 AD3d 1052,1053-1054 [2010], lv denied 14 NY3d 894 [2010]).
Finally, we do not find that defendant's sentence, which was well within the applicablepermissible statutory guidelines, was harsh or excessive. Considering defendant's grooming ofthe victim and the abuse of her trust, as well as his lack of remorse and failure to acceptresponsibility, we discern no abuse of discretion or extraordinary circumstances to warrant amodification of the sentence in the interests of justice (see People v St. Ives, 145 AD3d 1185, 1188 [2016], lvdenied 29 NY3d 1036 [2017]; People v Peart, 141 AD3d 939, 942 [2016], lv denied 28NY3d 1074 [2016]; People v Kamp,129 AD3d 1339, 1341 [2015], lv denied 26 NY3d 969 [2015]).
Egan Jr., Rose, Mulvey and Rumsey, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:During the victim's interviewwith investigators, she mistakenly stated that the incident had occurred on February 1, 2013,rather than February 2, 2013. The victim contacted the investigator within a few days to correcther mistake.