| People v Kiah |
| 2017 NY Slip Op 08752 [156 AD3d 1054] |
| December 14, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v KalvinKiah, Also Known as Black, Appellant. |
John Ferrara, Monticello, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered June 3,2015 in Albany County, upon a verdict convicting defendant of the crime of rape in the firstdegree.
On July 30, 2014, the female victim invited defendant, whom she had known forapproximately one year, to visit her apartment. After defendant arrived at approximately 9:30p.m., they smoked crack cocaine, which defendant had brought with him, and engaged in sexualintercourse. The following morning, the victim contacted the police to report that she had beenraped. Defendant was ultimately charged by indictment with rape in the first degree, criminalsexual act in the first degree and criminal sale of a controlled substance in the third degree. Upona jury trial, defendant was convicted of rape in the first degree and acquitted of the remainingcharges. He was sentenced as a second felony offender to a prison term of 15 years, with 15 yearsof postrelease supervision. Defendant now appeals.
Defendant first argues that the verdict was against the weight of the evidence. "In an analysisof whether a verdict is against the weight of the evidence, we first determine whether a differentfinding would not have been unreasonable, and, if not, we then weigh the relative probative forceof conflicting testimony and the relative strength of conflicting inferences that may be drawnfrom the testimony to determine whether the trier of fact accorded proper weight to the evidence.This analysis entails viewing the evidence in a neutral light and giving deference [*2]to the jury's credibility assessments" (People v Cooley, 149 AD3d 1268,1269 [2017] [internal quotation marks and citations omitted], lv denied 30 NY3d 979[2017]). As relevant here, "[a] person is guilty of rape in the first degree when he or she engagesin sexual intercourse with another person . . . [b]y forcible compulsion" (Penal Law§ 130.35 [1]). " 'Forcible compulsion' means to compel by . . .use of physical force" (Penal Law § 130.00 [8] [a]).
At trial, the victim testified that she became "high" after she and defendant smoked crackcocaine in the kitchen. She recalled that she became uncomfortable in the presence of defendant,who was drinking beer at the kitchen table, because he made "[s]exual gestures" and repeatedlystated a desire to have sexual intercourse with her. The victim testified that she told him no andasked him to leave her apartment, but admitted that when defendant asked her if he could "suckon [her] breasts," she allowed him to do so with the hope that he would then leave. The victimstated that defendant then carried her from the kitchen into the living room and, when she askedhim to put her down, he stated that "he was taking what was his." According to the victim,defendant then placed her on a couch in the living room and restrained her while engaging incertain sexual contact, including vaginal intercourse, notwithstanding the fact that she "yell[ed]"at him to stop at least six times. She estimated that the rape lasted for 10 or 15 minutes andtestified that, after using the bathroom, defendant left her residence, but returned a few minuteslater to retrieve some money he had left. The victim stated that she sent a text message todefendant the following day stating, "What you did was wrong, and you know it was, I asked youto stop . . . [eight] times, dude," and he replied, "Okay, apologize, apologize, okay,end of it." A photograph of the victim's cell phone screen showing the victim's text message anddefendant's response was admitted into evidence. On cross-examination, the victim admitted thatshe had previously abused crack cocaine, opiates and heroin and that she was taking medicationfor bipolar disorder at the time of the incident, which she had been advised could impair herthinking, especially if combined with illicit drugs like crack cocaine. The police officer whointerviewed the victim on the day after the incident testified that she was visibly upset, crying andagitated. The nurse who performed a sexual assault examination on the victim on the day afterthe incident testified that the victim was "[t]earful at times," and that the victim had an abrasionon her right knee, but no other injuries.
Defendant also testified at trial. He stated that when the victim invited him to her apartment,she requested that he bring crack cocaine. He admitted that he had sexual intercourse with thevictim at her apartment on the day in question, but stated that it was consensual and had beeninitiated by the victim; he specifically testified that she never told him to stop and that he did nothold her down. According to defendant, the victim then asked if he could obtain more crackcocaine; after he responded that he could not, she became belligerent and he left her apartment.When he returned to her apartment to retrieve his money—which he needed for busfare—the victim allowed him to enter and retrieve the money and again asked if he couldobtain more crack cocaine. Defendant admitted receiving the victim's text message, and testifiedthat he understood it as a complaint that he could not obtain more crack cocaine, for which heapologized. Defendant testified that he lied when he was interviewed subsequent to his arrest onAugust 1, 2014—by denying being in the county where the rape occurred or knowing thevictim—because he was scared. The conflicting testimony of the victim and defendantpresented "a classic he-said she-said credibility determination" for the jury to resolve (People v McCray, 102 AD3d1000, 1000 [2013], affd 23 NY3d 193 [2014]), and, although a different verdictwould not have been unreasonable, we accord deference to the jury's determination that thevictim's testimony was more credible than that of defendant and conclude that the weight of theevidence supports the verdict.
Defendant next contends that Supreme Court erred when it denied his motion seeking a [*3]subpoena duces tecum compelling production of the victim's mentalhealth treatment records for in camera review, which he sought as a possible basis forchallenging the victim's credibility. "In general, mental health records are confidential and willnot be discoverable where sought as a fishing expedition searching for some means of attackingthe victim's credibility. Access will be provided, however, where a defendant can demonstrate agood faith basis for believing that the records contain data relevant and material to thedetermination of guilt or innocence, a decision which will rest largely on the exercise of a sounddiscretion by the trial court" (id. at 1005 [internal quotation marks and citationsomitted]). In that regard, a history of treatment for a diagnosed mental condition is a sufficientbasis warranting in camera review of a witness's mental health records to determine whether theycontain relevant and material information bearing on the credibility of the witness that ought tobe disclosed to the defendant (seePeople v Bowman, 139 AD3d 1251, 1253-1254 [2016], lv denied 28 NY3d 927[2016]; People v McCray, 102 AD3d at 1005). The proper procedure in such cases is forthe trial court to order production of the requested records and conduct an in camera review(see People v Bowman, 139 AD3d at 1254; People v Viera, 133 AD3d 622, 623 [2015], lv denied 26NY3d 1151 [2016]; People v McCray, 102 AD3d at 1005). Without conducting an incamera review, a trial court lacks knowledge of whether the witness's mental health recordscontain any information relevant and material to the determination of guilt or innocence.
The requested records were not reviewed by Supreme Court. Prior to trial, the Peopledisclosed that the victim had indicated that she had received treatment for bipolar disorder anddepression and, further, produced a copy of the medical record from the sexual assaultexamination that was conducted on the day after the incident in which the victim had alsoreported a past medical history of "bipolar" and that she was taking prescription medications forthat condition. Defendant requested that the court issue a subpoena duces tecum to obtain thevictim's mental health records and conduct an in camera review to ascertain whether theycontained any information relevant and material to the victim's credibility. Supreme Court notedthat the People had represented that the victim had a "life long psychiatric condition" and that shewas taking prescription medication for her conditions at the time of the alleged rape. The courtconcluded that the victim's prior mental health history "has been consistent. Bipolar anddepression . . . [with] no indication that that would reflect upon memory orhallucinations or anything else"; on that basis, the court denied defendant's request for in camerareview of the victim's mental health records. Although defendant's motion was denied, hiscounsel used the available information to cross-examine the victim about her mental condition,and she admitted that she was taking—at the time of the incident and at trial—twomedications that had been prescribed for "bipolar depression" that could have impaired herthinking, especially when combined with crack cocaine.
We conclude that Supreme Court erred when it declined to order production of the victim'smental health records and to review them in camera. Inasmuch as those records were neverproduced and were not part of the record, we are unable to remit the matter for a reconstructionhearing (compare People vBowman, 137 AD3d 1484, 1484-1485 [2016]; People v Fullen, 118 AD3d 1297, 1298 [2014]). Moreover, withoutknowing the content of those records, we are unable to determine whether the information thatthey contain is merely cumulative to the information provided to defendant about the victim'smental health history that was used as a basis for cross-examination, or whether the recordscontain additional relevant and material information bearing on her credibility. Similarly, ourlack of knowledge of the contents of the victim's mental health records precludes us fromdetermining whether the court's error in this regard was harmless. Accordingly, the judgment ofconviction must be reversed and the matter remitted for a new trial.
[*4] In light of the need for a new trial, we address defendant'sargument that Supreme Court erred in denying his motion to suppress evidence retrieved fromhis cellular phone because the warrant authorizing a search of his phone was not executed within10 days of its issuance, as required by CPL 690.30 (1). When defendant was arrested on theunderlying charges on August 1, 2014, the arresting police officers retrieved a cellular phoneduring a search of his person conducted at the police station. The phone remained in possessionof the police department when a search warrant was issued on November 20, 2014 authorizing asearch of the phone for, among other things, subscriber information and text messages. At apretrial hearing, the People disclosed that the examination of defendant's phone pursuant to thewarrant was completed 19 days after the warrant was issued. We conclude that the court erred indenying defendant's motion to suppress evidence obtained upon a search of his phone because thewarrant was not executed within the 10-day limit for execution of a search warrant that is plainlyimposed by statute (see CPL 690.30 [1]; People v Jacobowitz, 89 AD2d 625, 625[1982]).[FN*]
Garry, J.P., Egan Jr., Rose and Mulvey, JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the Supreme Court for a new trial.
Footnote *:Supreme Court's reliance on People v DeProspero (20 NY3d527 [2013]) was misplaced inasmuch as CPL 690.30 (1) was not at issue in that casebecause the search warrant was executed one day after it was issued. Rather, the Court ofAppeals held that a search of the defendant's digital camera that was conducted eight monthsafter it was seized pursuant to a valid and timely-executed warrant did not violate the defendant'sFourth Amendment rights.