| People v Robinson |
| 2017 NY Slip Op 08906 [156 AD3d 1123] |
| December 21, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v HermanRobinson, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Egan Jr., J.P. Appeals (1) from a judgment of the Supreme Court (Coccoma, J.), renderedMay 28, 2015 in Schenectady County, convicting defendant following a nonjury trial of thecrimes of murder in the second degree, predatory sexual assault against a child, course of sexualconduct against a child in the first degree, rape in the first degree (two counts), rape in the seconddegree and endangering the welfare of a child, and (2) from a judgment of said court, renderedOctober 5, 2016 in Schenectady County, which dismissed the count of course of sexual conductagainst a child in the first degree and resentenced defendant.
On December 10, 2013, the City of Schenectady Police Department responded to a possiblesuicide attempt at a residence in the City of Schenectady, Schenectady County. Upon arrival,police spoke with defendant's girlfriend, who resided at the subject address, and obtained herpermission to enter the residence to search for defendant, whom she believed intended to harmhimself. During the ensuing search of the residence, police discovered a notebook with anapparent handwritten suicide note and, thereafter, discovered defendant unresponsive in a vehiclein the rear yard of the residence. Upon a further search of the residence, an officer read thesuicide note in its entirety, wherein defendant indicated that he had been raping and sexuallyabusing the victim for six years, that he had impregnated her and subsequently killed the baby.As part of the ensuing investigation, police obtained a statement from the victim—then 18years of age and attending college—wherein she corroborated the prolonged sexual abusereferenced in defendant's suicide note, including the fact that, for a period of years, defendant hadforced her [*2]to, among other things, engage in sexualintercourse and oral sexual conduct, had impregnated her, forced her to conceal her pregnancyand later killed the baby shortly after she gave birth.
Defendant was thereafter indicted and charged with murder in the second degree, predatorysexual assault against a child, course of sexual conduct against a child in the first degree, rape inthe first degree (two counts), rape in the second degree, criminal sexual act against a child andendangering the welfare of a child. Defendant's motions challenging the grand jury proceedingsas procedurally defective and seeking suppression of his statement made to law enforcementwhile in the hospital were both subsequently denied. The action was thereafter removed fromCounty Court to Supreme Court.[FN1] Following a nonjury trial, Supreme Court founddefendant guilty of murder in the second degree, predatory sexual assault against a child, courseof sexual conduct against a child in the first degree, rape in the first degree (two counts), rape inthe second degree and endangering the welfare of a child. Defendant was thereafter sentenced, asa second felony offender, to an aggregate prison term of 100 years to life. Supreme Courtsubsequently granted defendant's CPL article 440 motion and vacated the sentence initiallyimposed inasmuch as defendant had been improperly sentenced as a second felony offender.Defendant was then resentenced and again received an aggregate prison term of 100 years tolife.[FN2] Defendant nowappeals.
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence. When considering a challenge to the legal sufficiency of theevidence, we view the evidence in the light most favorable to the People and evaluate whether"there is any valid line of reasoning and permissible inferences which could lead a rationalperson to the conclusion reached by the jury on the basis of the evidence at trial and as a matterof law satisfy the proof and burden requirements for every element of the crime charged"(People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Ramos, 19 NY3d133, 136 [2012]; People vWarrington, 146 AD3d 1233, 1235 [2017], lv denied 29 NY3d 1038 [2017]).Moreover, in assessing the weight of the evidence, where, as here, a different verdict would nothave been unreasonable, this Court "must, like the trier of fact below, weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony" (People v Bleakley, 69 NY2d at 495 [internalquotation marks and citation omitted]; see People v Danielson, 9 NY3d 342, 348 [2007]).
Defendant initially contends that his conviction for predatory sexual assault against a childwas not supported by legally sufficient evidence because there was insufficient evidenceestablishing that the victim was less than 13 years old at the time the alleged sexual conductoccurred. As relevant here, to establish a conviction for predatory sexual assault against a child,the People were required to prove that defendant, being more than 18 years old and "over aperiod of time not less than three months in duration[,] . . . engage[d] in two ormore acts of [*3]sexual conduct, which include[d] at least one actof sexual intercourse [or] oral sexual conduct" with a child under age 13 (Penal Law§ 130.75 [1] [b]; see Penal Law § 130.96). The trial evidenceestablished that the victim was born on February 16, 1995. The victim testified that defendantbegan sexually abusing her when she was 11 years old while she and her family lived on PleasantStreet in Schenectady. The victim testified that the first instance of abuse occurred shortly afterher biological father had been murdered in June 2006 and around the time that she started sixthgrade in September 2006.[FN3] The victim testified that, while still living onPleasant Street, the sexual abuse escalated after defendant showed her a pornographic videodepicting a stepfather and stepdaughter engaging in sexual intercourse. The victim testified that,the following day, and continuing for years thereafter, defendant began having vaginalintercourse with her. The victim testified that, between September 2006 and September 2007,defendant had sexual intercourse with her more than 20 times and also began having her performoral sex on him.[FN4]Defendant's girlfriend, who was the victim's mother, corroborated the relevant time frame,testifying that their family resided in a house on Pleasant Street between 2006 and 2007. Thetime frame also coincides with defendant's December 2013 suicide note wherein he admitted thathe had been raping and sexually abusing the victim for six years. Accordingly, we find that theverdict as to count 2 was supported by legally sufficient evidence (see People v Kalina, 149 AD3d1264, 1265-1266 [2017], lv denied 29 NY3d 1092 [2017]; People v Sorrell, 108 AD3d 787,788-789 [2013], lv denied 23 NY3d 1025 [2014]).
Defendant also contends that the verdict as to counts 4 and 5 of the indictment charging himwith rape in the first degree was not supported by legally sufficient evidence and was against theweight of the evidence based upon insufficient proof being adduced as to forcible compulsion.Although defendant failed to preserve the legal sufficiency argument with respect to count 5,"our weight of the evidence review necessarily involves an evaluation of whether all elements ofthe charged crime[s] were proven beyond a reasonable doubt at trial" (People v Lancaster, 143 AD3d1046, 1047 [2016] [internal quotation marks and citation omitted], lv denied 28NY3d 1147 [2017]). As relevant here, "[a] person is guilty of rape in the first degree when he orshe engages in sexual intercourse with another person . . . [b]y forcible compulsion"(Penal Law § 130.35 [1]). Forcible compulsion includes the "use of physical force"or "a threat, express or implied, which places a person in fear of immediate death or physicalinjury to himself, herself or another person" (Penal Law § 130.00 [8] [a], [b]). Indetermining whether forcible compulsion has been established, the controlling factor is the stateof mind that the defendant's actions created in the victim based on a review of such relevantfactors as "the age of the victim, the relative size and strength of the defendant and victim, andthe nature of the defendant's relationship to the victim" (People v Melendez, 138 AD3d 1159, 1160 [2016] [internalquotation marks and citations omitted], lv denied 27 NY3d 1136 [2016]; see People v Porter, 82 AD3d1412, 1413 [2011], lv denied 16 NY3d 898 [2011]; People v Littebrant, 55 AD3d1151, 1155 [2008], lv denied 12 NY3d 818 [2009]).
[*4] Here, the victim testified that, prior to defendant's sexualabuse, they shared a "normal father-daughter relationship," but, beginning while the family livedon Pleasant Street, defendant began using sexual abuse as a punishment against thevictim.[FN5] The victimrecounted that if she did not perform sexual acts on defendant, he would beat her "like [she] washis size." The victim also indicated that defendant told her that if she ever told anyone about theongoing abuse, both he and her mother would go to jail, and she reasonably believed that she andher siblings would then be placed in foster care and separated from each other.[FN6] The victim testified that, as shegot older, defendant's threats escalated and he would tell her that, if she told anyone about theabuse, he would kill her, himself and the whole family. She testified that on one particularoccasion, around the summer of 2009, defendant had beaten her with his hands and pointed ablack handgun at her face, threatening to kill the entire family. This incident occurred afterdefendant had forced the victim to engage in oral sex on him as punishment for goingroller-skating with a cousin on whom defendant alleged the victim had performed a sexual act.Notably, this incident occurred on or about the same time that the victim—who was thenonly 14 years old—testified that she had become pregnant as a result of havingunprotected sexual intercourse with defendant as charged in count 4.[FN7] Accordingly, we find legally sufficientevidence was set forth establishing forcible compulsion with respect to count 4 (see People v Blackman, 90 AD3d1304, 1306-1307 [2011], lv denied 19 NY3d 971 [2012]).
Next, we find without merit defendant's claim that the verdict as to count 1, murder in thesecond degree, was legally insufficient because the People did not establish that the victim gavebirth to a baby. Although no body was ever discovered, the victim testified that she gave birth toa baby girl, in the bedroom of her apartment, on March 11, 2010. She testified that, as she wasgiving birth, defendant proceeded to pull the baby the rest of the way out of her body and thenplaced the baby on the floor. The victim specifically testified that she heard the baby cry and sawthe baby's hands open and close, her arms move and the baby's stomach rise and fall from takingbreaths. The victim testified that she then observed defendant "slam[ ] the baby's head on thefloor" twice. The victim testified that defendant then briefly left the room whereupon she pickedup the baby and observed the baby's stomach moving for a few seconds before it ultimatelystopped. The victim testified that defendant then came back into the room and "picked up theafterbirth, [her] sweatpants and the baby and placed [all of] it in a . . . garbage bag"and left the room again. The victim's testimony was corroborated by the testimony of a forensicpediatrician who examined the victim and opined that she had given birth, DNA evidenceindicating that a blood sample taken from the victim's box spring mattress came from anunidentified Jane Doe and defendant's suicide note wherein he admitted to killing the baby.Accordingly, viewing the evidence in a light most favorable to the People, a rational personcould have determined that the victim gave birth to a living, breathing baby and that defendantkilled that baby in order to cover up his crimes against the victim.
[*5] Further, viewing the evidence in a neutral light andaccording deference to Supreme Court's credibility determinations, we find that the verdict wasnot against the weight of the evidence (see People v Bleakley, 69 NY2d at 495). Whilethe victim's initial statement to police and testimony before the grand jury with regard to her ageat the time that defendant started to sexually abuse her, as well as her observations of the baby atthe time she gave birth, were at times conflicting or inconsistent with her trial testimony, theseinconsistencies were fully developed at trial and Supreme Court, as the trier of fact in thisnonjury trial, had the opportunity to hear the victim's explanations, observe her demeanor andmake its own credibility determinations with regard to the testimony provided. Moreover,Supreme Court clearly credited the victim's testimony and her version of the events as theyunfolded over the course of the nearly seven years that she was sexually abused.[FN8]
Defendant next contends that Supreme Court erred in not suppressing his suicide noteinasmuch as it was obtained in violation of his constitutional rights against unlawful searches andseizures. Specifically, defendant contends that any consent that his girlfriend may have initiallygiven to police to search the subject residence to locate defendant effectively expired when thepolice located defendant unresponsive in his vehicle. Moreover, to the extent that his girlfrienddid not thereafter provide law enforcement with specific consent to search the residence untilafter the notebook had already been seized by police, defendant argues that its seizure cannot bejustified on the basis of a consent search. We disagree. "Even in the absence of a warrant, policemay lawfully search a residence where an inhabitant with apparent authority to consent to thesearch freely and voluntarily does so" (People v Grillo, 128 AD3d 1103, 1104 [2015] [citations omitted];accord People v Gray, 152 AD3d1068, 1070 [2017], lv denied 30 NY3d 980 [2017]). Whether such consent wasfreely and voluntarily obtained is determined by examining the totality of the circumstances, andgreat deference is afforded to the factual determinations of the trial court (see People vGarnsey, 288 AD2d 761, 762 [2001], lv denied 97 NY2d 754 [2002]).
Here, on the morning in question, defendant's girlfriend called defendant from her place ofemployment and became alarmed after he indicated, with slurred speech, that he had takenmedication and subsequently became unresponsive while on the telephone. She then asked hersupervisor to call 911, and a coworker drove her home. The police arrived at the residence to findthe girlfriend on the front porch where she informed them that she resided with defendant,believed he was attempting to commit suicide and that she did not have keys on her person toenter the residence. The police then proceeded to ram open the front door and entered to find no[*6]one present, but an apparent suicide note lying on abed.[FN9] Continuing out tothe rear yard, the police discovered defendant lying unresponsive inside of an automobile.Paramedics who soon arrived requested that the police go back into the residence in order tolocate any substances that he might have ingested and, in the course of doing so, police againviewed and ultimately seized the suicide note. As the paramedics were leaving to bring defendantto the hospital, defendant's girlfriend, desiring to go with them, gave a police officer the keys tothe residence and, again, gave them permission to search it.
The initial police entry into the residence, therefore, was made with the express consent ofdefendant's girlfriend, a person with "apparent authority to consent to the search of the sharedpremises" (People v Gray, 152 AD3d at 1070). Despite defendant's assertion to thecontrary, the temporal scope of her consent did not expire when the police discovered defendantin the rear yard.[FN10]Defendant's girlfriend acknowledged that she was aware that the police continued to go in andout of the residence through the back door during such time and, as she left the residence to bewith defendant, again, by actions and words, consented to continued police presence therein.Accordingly, viewed in the totality and in consideration of the circumstances presented, SupremeCourt properly denied defendant's motion to suppress the notebook.
Next, we find unavailing defendant's contention that the statement that he provided to policewhile in the intensive care unit of the hospital should have been suppressed because he did notknowingly and voluntary waive his Miranda rights. It was the People's burden to prove,beyond a reasonable doubt, that defendant's statement to police was voluntarily entered into and"that any custodial interrogation was preceded by the administration and defendant's knowingwaiver of his Miranda rights" (People v Muller, 155 AD3d 1091, 1092 [2017] [internal quotationmarks and citations omitted]). The voluntariness of a statement provided to law enforcementfollowing administration of defendant's Miranda warnings is determined by examiningthe totality of the circumstances under which it was obtained (see People v Steigler, 152 AD3d 1083, 1083 [2017], lvdenied 30 NY3d 983 [2017]; Peoplev Sabines, 121 AD3d 1409, 1411 [2014], lv denied 25 NY3d 1171 [2015]), anddeference is given to the credibility determinations and factual findings made by the suppressioncourt (see People v Neal, 133 AD3d920, 922 [2015], lv denied 26 NY3d 1110 [2016]; People v Mattis, 108 AD3d 872,874 [2013], lv denied 22 NY3d 957 [2013]).
At the suppression hearing, officer Joseph McCabe testified that he and another detectiveinterviewed defendant in his room in the intensive care unit of the hospital at [*7]approximately 1:30 p.m. on the afternoon of December 13, 2013.McCabe testified that he spoke with a doctor and nurse prior to interviewing defendant and wasaware that defendant had been taken out of a medically induced coma the previous day. McCabetestified that, upon entering defendant's hospital room, he introduced himself, indicated todefendant that he wanted to talk about what had happened and advised him of hisMiranda rights prior to any questioning. Defendant thereafter initialed on a preprintedform next to each of the rights that he had been advised of, indicating that he understood therights referenced therein, and signed the document. McCabe testified that he then askeddefendant a number of clarifying questions, such as his name, the name of his girlfriend, thenames of his children and their corresponding ages, where he lived and who the current presidentwas, all of which defendant promptly and accurately answered. The initial interview lastedapproximately one hour and, following a short break, was followed by another round ofquestioning that lasted approximately 40 minutes.
In response to McCabe's and the other officer's questions, defendant provided detailedinformation about, among other things, his upbringing and childhood and his concerns over thevictim's behavior while she was away at college and provided a detailed and coherent time line ofhis activities on the morning leading up to his attempted suicide. Notably, defendant indicated hisawareness of his Miranda rights by ultimately deciding to invoke his right to counsel, atwhich point the police terminated the interview. While there was medical evidence presented atthe hearing indicating that defendant had been provided certain pain medication prior to theofficers' interview and he had been agitated, combative and disoriented at certain other timesduring his hospital stay, the record reveals that, at the time that the officers conducted the subjectinterview, defendant was alert, responsive and otherwise showed no signs that his physical ormental condition was impaired to the extent that his ability to make a decision whether to speakwith the officers was undermined (seePeople v Balram, 47 AD3d 1014, 1014-1015 [2008], lv denied 10 NY3d 859[2008]; People v Thompson, 34AD3d 931, 932-933 [2006], lv denied 7 NY3d 929 [2006]; People v May,263 AD2d 215, 219 [2000], lv denied 94 NY2d 950 [2000]). Accordingly, we find nobasis to disturb the suppression court's determination that defendant knowingly and voluntarilywaived his Miranda rights and that his statements were voluntary.
Lastly, we find without merit defendant's contention that the sentence imposed was harsh andexcessive. Contrary to defendant's assertion, given the duration of the sexual abuse at issue, thehorrific nature of the acts committed, defendant's criminal history and his complete lack ofremorse for the crimes committed, we discern nothing in the record indicating that SupremeCourt sought to punish defendant for exercising his right to trial (see People v Shoemaker, 119 AD3d1073, 1077 [2014], lv denied 25 NY3d 992 [2015]). Nor do we find anyextraordinary circumstances or an abuse of discretion by Supreme Court that would otherwisewarrant a reduction of defendant's sentence in the interest of justice (see People v Rankin, 117 AD3d1231, 1234 [2014], lv denied 24 NY3d 1087 [2014]). To the extent not expresslyaddressed herein, defendant's remaining contentions have been considered and determined to bewithout merit.
Rose, Devine, Mulvey and Rumsey, JJ., concur. Ordered that the judgments areaffirmed.
Footnote 1:Immediately prior to trial, thePeople moved to withdraw count 6 of the indictment charging defendant with criminal sexual actin the first degree. Supreme Court granted the motion and dismissed the charge.
Footnote 2:At resentencing, Supreme Courtgranted the People's motion to vacate defendant's conviction on count 3, course of sexual conductagainst a child in the first degree, and dismissed said count inasmuch as it was a lesser includedcharge of count 2, predatory sexual assault against a child.
Footnote 3:Specifically, the victim testifiedthat defendant entered her bedroom one night, pulled her pants down, placed a blanket over herupper body and proceeded to "fondle [her] vagina while he unzipped his pants and pleasuredhimself."
Footnote 4:The trial evidence establishedthat the sexual intercourse and oral sexual conduct that the victim endured continued throughoutthe time that she lived on Pleasant Street and prior to her 13th birthday in February 2008.
Footnote 5:Defendant was not the victim'sbiological father, but he began residing with the victim's mother and the victim while the victimwas still an infant. Defendant and the victim's mother subsequently had three children together.
Footnote 6:The victim also recountedobserving numerous instances of violence between defendant and her mother.
Footnote 7:The victim testified that shelearned she was pregnant during the summer of 2009, shortly after her graduation from eighthgrade.
Footnote 8:We also find without meritdefendant's contention that the grand jury proceeding was defective. To the extent thatdefendant's convictions were not against the weight of the evidence and, therefore, werenecessarily supported by legally sufficient evidence (see generally People v Danielson, 9NY3d at 348-349), any such challenge predicated upon the sufficiency of the evidence presentedor instructions provided to the grand jury are precluded (see CPL 210.30 [6]; People v Gaston, 147 AD3d 1219,1220 n 2 [2017]; People v Sorrell, 108 AD3d at 789 n 2). Moreover, our review of thegrand jury minutes reveals a quorum of grand jurors was present and fails to reveal any errors inthe People's presentation of the case that impaired the integrity of the proceedings or prejudiceddefendant that would warrant the exceptional remedy of reversal (see People v Huston,88 NY2d 400, 409 [1996]).
Footnote 9:When asked at trial about herreaction to the police having rammed open the door, defendant's girlfriend testified that shewanted the police to "get in to get him."
Footnote 10:In any event, as there wasclearly an ongoing emergency with regard to defendant's health and safety and inasmuch as theadditional search was motivated not by any intent to search for evidence of a crime, but to locatethe source of the intoxicants that defendant had apparently ingested, the police were justified inreentering the residence by invocation of the emergency doctrine (see generally People v Doll, 21 NY3d665, 670-671 [2013], cert denied 572 US &mdash, 134 S Ct 1552 [2014]; People v Gibson, 117 AD3d 1317,1318-1320 [2014], affd 24 NY3d 1125 [2015]).