| People v Miller |
| 2018 NY Slip Op 01356 [159 AD3d 1045] |
| March 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JeffreyMiller, Appellant. |
William T. Morrison, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Pritzker, J. Appeal, by permission, from an order of the County Court of Albany County(Lynch, J.), entered November 18, 2014, which denied defendant's motion pursuant to CPL440.10 and 440.20 to vacate the judgment convicting him of the crime of criminal sexual act inthe first degree (three counts) and to set aside the sentence, without a hearing.
Defendant was indicted on charges of rape in the first degree (two counts) and criminalsexual act in the first degree (four counts) upon allegations that he solicited sex for money fromthe victim and then took her to a secluded area in the City of Albany, where he physically forcedher to engage in various sexual acts. Following a jury trial, he was convicted of three counts ofcriminal sexual act in the first degree, but acquitted of the remaining counts. He was sentenced,as a second violent felony offender, to an aggregate prison term of 25 years followed by a periodof postrelease supervision. Upon appeal, this Court affirmed defendant's judgment of conviction(112 AD3d 1061, 1064 [2013], lv denied 23 NY3d 1040 [2014]). Thereafter, defendantmoved pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and to set asidethe sentence.[FN1] After oralargument on the motion, County Court denied it without a hearing. With permission of thisCourt, defendant now appeals, [*2]and we affirm.
Defendant challenges the integrity of the grand jury proceedings by arguing that the victimgave perjured testimony. In support of such assertion, defendant points to inconsistenciesbetween the victim's grand jury testimony and her trial testimony with respect to the duration ofthe alleged rape. Moreover, he notes that a receipt from a convenience store was found in hispocket upon his arrest that included a time stamp contradicting the victim's grand jury testimonythat the alleged rape lasted for approximately two hours. As defendant notes in his brief, thesefacts were referenced by the parties at trial while discussing a jury note and, accordingly, plainlyappear on the record. Inasmuch as the record permitted adequate review of this issue, it shouldhave been raised on direct appeal, precluding relief under CPL article 440 (see CPL440.10 [2] [c]; People v Monteiro, 149 AD3d 1155, 1156 [2017]; People v DePerno, 148 AD3d1463, 1465 [2017], lv denied 29 NY3d 1030 [2017]). We therefore decline toaddress it.
Defendant also contends that the People committed two Brady violations in failing todisclose certain impeachment material. His first Brady claim is based upon the People'suntimely disclosure of the victim's grand jury testimony "on the eve of trial" and their failure todisclose the store receipt. Defendant reveals, however, that he received the grand jury testimonyshortly before trial and that the receipt was in his pocket upon his arrest. Therefore, "he couldhave created a sufficient record to enable him to raise this issue on direct appeal," precludingCPL article 440 relief (People v Rodriguez, 201 AD2d 683, 683 [1994], lv denied83 NY2d 914 [1994]; see CPL 440.10 [3] [a]). Moreover, the claim is unavailing (seePeople v Cortijo, 70 NY2d 868, 870 [1987]; People v Jordan, 154 AD3d 1176, 1177-1178 [2017]; People v Carter, 131 AD3d 717,720 n 1 [2015], lv denied 26 NY3d 1007 [2015]). The second Brady claim ispremised upon the People's failure to disclose inconsistencies in the victim's statements to policein an unrelated murder trial in which she served as a prosecution witness. Even assuming that theminutes of that trial provided impeachment material that was subject to disclosure underBrady (see generally People vFisher, 28 NY3d 717, 722 [2017]; People v Auleta, 82 AD3d 1417, 1420 [2011], lv denied 17NY3d 813 [2011]), the nondisclosure did not amount to a Brady violation. Here, thevictim's inconsistencies in a completely unrelated trial had such little impeachment utility thatthere was not even a reasonable possibility that disclosure would have changed the outcome,particularly where there was independent evidence corroborating aspects of the victim'stestimony with respect to the underlying charges (see People v Phillips, 55 AD3d 1145, 1149 [2008], lvdenied 11 NY3d 899 [2008]; People v Quinones, 251 AD2d 270, 270 [1998], lvdenied 92 NY2d 929 [1998]). Therefore, this alleged Brady claim is alsounavailing.
As a final matter, defendant contends that he was illegally sentenced as a second violentfelony offender because his 1999 federal conviction of aggravated sexual abuse (see 18USC § 2241 [a]) does not qualify as a predicate conviction for the purpose ofenhanced sentencing. As relevant here, a foreign conviction may be used as a predicateconviction for the purpose of sentencing as a second violent felony offender when it "includes allof the essential elements of [a New York violent] felony . . . for which a sentence toa term of imprisonment in excess of one year or a sentence of death [is] authorized" (Penal Law§ 70.04 [1] [b] [i]). In reviewing this claim, we use a "strict equivalency" standardthat "examines the elements of the foreign conviction to determine whether the crimecorresponds to a New York felony," as well as the "case law of [the] foreign jurisdiction toconfirm [its] interpretation of [the] foreign statute" (People v Helms, 30 NY3d 259, 263-264 [2017] [internal quotationmarks and citation omitted]).
As relevant here, a person commits the federal crime of aggravated sexual abuse when he orshe, while in the jurisdiction of the United States, "knowingly causes another person to engage ina sexual act—(1) by using force against that other person; or (2) by threatening or [*3]placing that other person in fear that any person will be subjected todeath, serious bodily injury, or kidnapping" (18 USC § 2241 [a]). The term "sexualact" means: penetrative contact, however slight, between the penis and vulva or anus;mouth-to-genital or mouth-to-anal contact; penetrative contact "of the anal or genital opening ofanother by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade,or arouse or gratify the sexual desire of any person"; or intentional touching of the genitalia of aperson under the age of 16 performed "with an intent to abuse, humiliate, harass, degrade, orarouse or gratify the sexual desire of any person" (18 USC § 2246 [2]). Unlikefederal law—which proscribes different types of sexual conduct under a single statute(see 18 USC § 2241)—New York law criminalizes this same conductthroughout multiple sections of Penal Law article 130.
Contrary to defendant's contention as to the element of force, the elements of 18 USC§ 2241 (a) and the Penal Law element of forcible compulsion are sufficientlyequivalent. " 'Forcible compulsion' means to compel by either: a. use of physical force; orb. a threat, express or implied, which places a person in fear of immediate death or physicalinjury to himself, herself or another person, or in fear that he, she or another person willimmediately be kidnapped" (Penal Law § 130.00 [8]). 18 USC § 2241(a) criminalizes conduct when a defendant "us[es] force against that other person" or "threat[ens]or plac[es] that other person in fear that any person will be subjected to death, serious bodilyinjury, or kidnapping." Therefore, in comparing the elements of force and forcible compulsion asthey are respectively defined in the federal and New York penal statutes, the definitions areequivalent (see People v Muniz, 74 NY2d 464, 467-468 [1989]).
Defendant also argues that he could have been convicted of 18 USC § 2241 (a)under circumstances that would only constitute the misdemeanor crime of forcible touchingunder Penal Law § 130.52. Inasmuch as defendant conceded during sentencing thathis foreign conviction constituted a felony, albeit not a violent felony, under New Yorklaw, this contention is waived (seegenerally People v Ross, 7 NY3d 905, 906 [2006]). Notably, all of the Penal Lawstatutes that encompass the various "sexual acts" included in 18 USC § 2246 (2)and contain the element of forcible compulsion are violent felonies as defined under this state'sPenal Law (see Penal Law §§ 70.02 [1]; 130.35, 130.50, 130.65,130.67, 130.70).
Defendant further contends that 18 USC § 2241 (a) does not pass the strictequivalency test as it does not require proof of a specific criminal intent whereas the analogousPenal Law sections do. To the contrary, the Court of Appeals has unanimously held that generalintent is the culpable mental state for the analogous Penal Law crimes of rape and sodomy(see People v Williams, 81 NY2d 303, 318 [1993, Bellacosa, J., dissenting]; seealso Penal Law § 15.15 [2]).[FN2] The culpable mental state for 18 USC§ 2241 (a) is "knowingly," which "merely requires proof of knowledge of the factsthat constitute the offense" (Bryan v United States, 524 US 184, 193 [1998]). TheSupreme Court of the United States has held that " 'knowledge' corresponds loosely withthe concept of general intent" (United States v Bailey, 444 US 394, 405 [1980]).Accordingly, we conclude that 18 USC § 2241 (a) shares essential elements to theanalogous Penal Law crimes, all of which are violent felonies. Therefore, defendant's convictionunder 18 [*4]USC § 2241 (a) is a predicateconviction for the purpose of adjudication as a second violent felony offender, and the sentenceimposed was authorized (see Penal Law § 70.04 [1] [b] [i]; cf. People v Green, 141 AD3d1036, 1042 [2016], lv denied 28 NY3d 1072 [2016]; compare People v Gibson, 141 AD3d1009, 1013 [2016]).
Garry, P.J., McCarthy, Mulvey and Aarons, JJ., concur. Ordered that the order isaffirmed.
Footnote 1:Although defendant initiallymoved to dismiss the indictment pursuant to CPL 210.35 (5), County Court granted hissubsequent motion to convert it to one seeking relief under CPL 440.10 and 440.20.
Footnote 2:While the analogous Penal Lawcrimes do not specifically articulate a mens rea requirement, "intent is implicitly an element ofthese crimes" (People v Williams, 81 NY2d at 316; see Penal Law§ 15.15 [2]), and "[t]he intent required is the intent to perform the prohibited act"(People v Williams, 81 NY2d at 316-317).