| People v Hartle |
| 2018 NY Slip Op 01515 [159 AD3d 1149] |
| March 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Mark A.Hartle, Appellant. |
John A. Cirando, Syracuse, for appellant.
Gary M. Pasque, District Attorney, Canton (Hannah E.C. Moore, New York ProsecutorsTraining Institute Inc., Albany, of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of St. Lawrence County (Champagne,J.), rendered August 15, 2016, upon a verdict convicting defendant of the crimes of rape in thefirst degree (four counts), criminal sexual act in the first degree (four counts), sexual abuse in thefirst degree (four counts), rape in the third degree (four counts), criminal sexual act in the thirddegree (five counts) and sexual abuse in the third degree (three counts).
Defendant was charged in a 31-count indictment with various sex crimes that occurred with a15-year-old victim from the summer of 2014 to the fall of 2014. Prior to trial, County Courtdismissed five counts of the indictment as multiplicitous, and, during defendant's jury trial,dismissed two more counts because the evidence was legally insufficient to maintain thosecounts. At the conclusion of trial, defendant was convicted of rape in the first degree (fourcounts), criminal sexual act in the first degree (four counts), sexual abuse in the first degree (fourcounts), rape in the third degree (four counts), criminal sexual act in the third degree (fivecounts) and sexual abuse in the third degree (three counts). Prior to sentencing, defendant moved,pursuant to CPL 330.30, to set aside the verdict based upon improper conduct by one or more ofthe jurors. County Court found the motion to be untimely, and, in any event, without merit, anddenied the motion without a hearing. Thereafter, County Court sentenced defendant to anaggregate prison term of 54 years, to be followed by 10 years of postrelease [*2]supervision.[FN*] Defendant now appeals, and we affirm.
Initially, as to defendant's contention that the indictment was facially defective in that itfailed to specify the exact location and time at which the sexual offenses were committed,defendant did not raise this waivable deficiency in his motion to dismiss the indictment(see CPL 210.20, 210.25), and this claim is therefore unpreserved for our review (seePeople v Iannone, 45 NY2d 589, 600 [1978]; People v Slingerland, 101 AD3d 1265, 1265-1266 [2012], lvdenied 20 NY3d 1104 [2013]; cf. People v Stauber, 307 AD2d 544, 545 [2003],lv denied 100 NY2d 599 [2003]).
We next consider defendant's arguments that the verdict was not supported by legallysufficient evidence and that it was against the weight of the evidence. As to the formercontention, defendant avers that the evidence with respect to his convictions for rape in the firstdegree (counts 7, 12, 18, 28), criminal sexual act in the first degree (counts 4, 10, 16, 26) andsexual abuse in the first degree (counts 8, 14, 20, 30) was deficient in that the People failed toproduce legally sufficient proof of the element of forcible compulsion to sustain those counts. "Inconducting a legal sufficiency analysis, this Court views the evidence in the light most favorableto the People and evaluates whether there is any valid line of reasoning and permissibleinferences which could lead a rational person to the conclusion reached by the jury on the basisof the evidence at trial and as a matter of law satisfy the proof and burden requirements for everyelement of the crime charged" (People vBrousseau, 149 AD3d 1275, 1276 [2017] [internal quotation marks, brackets andcitations omitted]; see People v Bleakley, 69 NY2d 490, 495 [1987]). As relevant here, "a[person] is guilty of rape in the first degree when he or she engages in sexual intercourse withanother person by forcible compulsion" (People v Luckette, 126 AD3d 1044, 1045 [2015], lv denied26 NY3d 1110 [2016]; see Penal Law § 130.35 [1]). "A person is guilty ofsexual abuse in the first degree when he or she subjects another person to sexual contact. . . [b]y forcible compulsion" (Penal Law § 130.65 [1]), and "[a]person is guilty of criminal sexual act in the first degree when he or she engages in oral sexualconduct or anal sexual conduct with another person . . . [b]y forcible compulsion"(Penal Law § 130.50 [1]). Forcible compulsion means, in relevant part, to compelby either "use of physical force" (Penal Law § 130.00 [8] [a]) or "a threat, expressor implied, which places a person in fear of immediate death or physical injury to himself, herselfor another person" (Penal Law § 130.00 [8] [b]).
At trial, the victim described in her testimony eight separate incidents of sexual offenses bydefendant that began shortly after her fifteenth birthday in June 2014 and continued through thefall of 2014. The victim testified that defendant was a best friend to her father, that she hadknown defendant for all of her life and that her brother also had a close relationship withdefendant. As to the four incidents that were alleged by the People to involve the element offorcible compulsion, the victim testified about two incidents that occurred during the summer of2014 when the victim stayed overnight at defendant's home with one or more of her siblings. Oneach occasion, while sleeping on the couch, the victim was awoken by defendant, who pulled herinto the bedroom and onto a bed whereupon defendant removed her clothes and had sexualintercourse with her. On both occasions, the victim resisted defendant's behavior by attempting topush him away and then dropping to the couch "[l]ike dead weight" to resist being pulled into thebedroom. During another incident, which occurred at the summer camp of the victim's family,defendant approached the victim in the shower area, pulled off her towel and clothing, despite thevictim's attempt to pull away from defendant, who then pulled her onto a bed and [*3]engaged in various sexual acts with her, including intercourse. Thevictim further testified about an incident in November 2014 at defendant's home, wheredefendant awoke her and pulled her into the bedroom to engage in sexual activity with her. Thevictim testified that she did not try to resist because she was not awake yet and because she knewthat defendant would not stop.
As to the crimes involving the element of forcible compulsion, we find that, when viewingthe evidence in the light most favorable to the People, the People proffered legally sufficientevidence at trial so that a rational juror could conclude that the element of forcible compulsionwas established beyond a reasonable doubt (see People v Lancaster, 121 AD3d 1301, 1303 [2014], lvdenied 24 NY3d 1121 [2015]; People v Scanlon, 52 AD3d 1035, 1038 [2008], lv denied11 NY3d 741 [2008]; People v Sehn, 295 AD2d 749, 750-751 [2002], lv denied98 NY2d 732 [2002]). In so concluding, we are mindful that the forcible compulsion calculusmust, as we have done here, take into consideration the young age of the victim, her relative sizeand strength compared to the adult defendant, defendant's close relationship to the victim andposition of trust and authority within the victim's family and the victim's state of mind, includingher expressed fear of telling her father about the incidents given his then close relationship withdefendant (see People v Lancaster, 121 AD3d at 1303; People v King, 79 AD3d 1277,1278 [2010], lv denied 16 NY3d 860 [2011]; People v Scanlon, 52 AD3d at1038-1039; People v Vasquez, 49AD3d 1282, 1284 [2008]). Moreover, our conclusion is buttressed by the principles that"forcible compulsion is not synonymous with violence" (People v Peraza, 288 AD2d 689,691 [2001], lv denied 97 NY2d 707 [2002]; accord People v Luckette, 126 AD3dat 1046), and "for a sex offense to be predicated on forcible compulsion 'neither physical injurynor screaming or crying out is required' " (People v Scanlon, 52 AD3d at 1038,quoting People v Alford, 287 AD2d 884, 886 [2001], lv denied 97 NY2d 750[2002]; see People v Luckette, 126 AD3d at 1046). Therefore, the counts involvingforcible compulsion were supported by legally sufficient evidence.
As to defendant's claim that the verdict was against the weight of the evidence, where, ashere, an alternative verdict would not have been unreasonable, we must, "like the trier of factbelow, weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley, 69NY2d at 495 [internal quotation marks and citation omitted]). Defendant contends that thevictim's testimony was uncorroborated by any other evidence and that her narrative of theincidents is incredible because she continued to place herself around defendant in vulnerablesettings. However, "[w]here, as here, credibility issues are presented, 'deference is accorded tothe fact-finder's opportunity to view the witnesses, hear the testimony and observedemeanor' " (People vTubbs, 115 AD3d 1009, 1010 [2014], quoting People v Romero, 7 NY3d 633, 644 [2006]), and, significantly,"[w]hen reviewing a challenge to the weight of the evidence, we do not consider what the victimcould or should have done" (People v Luckette, 126 AD3d at 1046; see People vJackson, 290 AD2d 644, 646 [2002], lv denied 98 NY2d 711 [2002]). While thetestimony of the victim's brother was limited to confirming that he and the victim were overnightguests at defendant's home numerous times during the time period in question and did notprovide any further details regarding the sexual offenses, the jury was entitled to, and did, creditthe victim's testimony in which she described in detail the eight incidents of sexual misbehaviorby defendant. After conducting our independent and neutral review of the trial testimony andaccording, as we must, great deference to the jury's assessment of the credibility and demeanor ofthe victim, we cannot say that the victim's testimony is impossible of belief or manifestly untrue(see People v Voymas, 39 AD3d1182, 1183 [2007], lv denied 9 NY3d 852 [2007]; People v Scanlon, 52AD3d at 1038). We therefore find that the jury's verdict was not against the weight of theevidence (see People v Luckette, 126 AD3d at 1046; People v Sehn, 295 AD2d at751).
[*4] Defendant also argues that he was deprivedof a fair trial as a result of certain remarks made by the prosecutor during closing arguments. "Indetermining 'whether a reversal is warranted on this ground, we must assess the severity andfrequency of the conduct, whether the trial court took appropriate action to dilute the effect of theconduct and whether, from a review of the evidence, it can be said that the result would havebeen the same absent such conduct' " (People v White, 79 AD3d 1460, 1464 [2010], lv denied 17NY3d 803 [2011], quoting People v DeVito, 21 AD3d 696, 700 [2005]). Applying that standard here, we conclude that reversalis not warranted. During summation, the prosecutor questioned whether the victim had anymotive to lie and then answered that question by stating that the victim had "[a]bsolutely nomotive to lie about this." While these remarks amounted to an improper and unnecessarycharacterization of the victim's testimony and her credibility (see People v Casanova, 119 AD3d 976, 978-979 [2014]; People v Levandowski, 8 AD3d898, 900-901 [2004], lv withdrawn 3 NY3d 740 [2004]), the challenged statements,in our view, were not pervasive or frequent and fell short of the sort of flagrant misconduct thatwould have deprived defendant of a fair trial (see People v Fomby, 101 AD3d 1355, 1357 [2012]; People vWhite, 79 AD3d at 1464-1465; People v McCombs, 18 AD3d 888, 890 [2005]). In addition, thecomments were in direct response to defense counsel's summation, which focused on the victim'scredibility and the lack of corroboration (see People v Morgan, 66 NY2d 255, 259[1985]; People v Leonard, 83 AD3d1113, 1117 [2011], affd 19 NY3d 323 [2012]; People v White, 79 AD3d at1464; People v Molina, 79 AD3d1371, 1377 [2010], lv denied 16 NY3d 861 [2011]).
We turn next to defendant's contention that County Court abused its discretion in denying hisCPL 330.30 (2) motion, without a hearing, which was predicated upon defendant's allegation thatone or more of the jurors had engaged in improper conduct by discussing defendant's prior rapeprosecution, which had resulted in an acquittal. CPL 330.30 (2) provides that "[a]t any time afterrendition of a verdict of guilty and before sentenc[ing]," a court may, upon motion by adefendant, set aside the verdict. The trial court is permitted to exercise such discretion if, "duringthe trial there occurred, out of the presence of the court, improper conduct by a juror, or improperconduct by another person in relation to a juror, which may have affected a substantial right ofthe defendant and which was not known to the defendant prior to the rendition of the verdict"(CPL 330.30 [2]; People v Rodriguez, 100 NY2d 30, 35 [2003]; People v Davis, 149 AD3d 1246,1248 [2017], lv denied 29 NY3d 1125 [2017]). "However, not every misstep by a jurorrises to the inherently prejudicial level at which reversal is required" (People v Artis, 90 AD3d 1240,1241 [2011] [internal quotation marks and citations omitted], lv denied 18 NY3d 955[2012]; see People v Rodriguez, 100 NY2d at 35; People v Brown, 48 NY2d 388,394 [1979]).
Defendant alleged in his motion that, following the jury's verdict, a private investigatorinterviewed two of the jurors who had learned in the jury room of defendant's prior rapeprosecution. Defendant attached purported transcripts of the interviews to his motion. Theunsworn transcripts of those interviews reflect that, while defendant's prior prosecution andacquittal may have been briefly mentioned in the jury room, the prior matter was "dismissed" bythe jurors because they knew that it could not be used in their deliberations. In ourview—and notwithstanding the procedural irregularities attendant to defendant'smotion—there is no evidence that the jury's deliberative process was affected by improperinfluence or that the alleged conversations were so significantly prejudicial as to require a newtrial, and, therefore, County Court acted within its discretion in denying the motion (see People v Kenyon, 108 AD3d933, 941 [2013], lv denied 21 NY3d 1075 [2013]; People v Mattis, 108 AD3d 872,876 [2013], lv denied 22 NY3d 957 [2013]; People v Artis, 90 AD3d at1242).
Finally, we do not find defendant's sentence or fine to be harsh or excessive. Given the [*5]serious and exploitive nature of defendant's crimes, his criminalhistory and lack of remorse, as well as the young age of, and his relationship with, the victim, wediscern no abuse of discretion or any extraordinary circumstances that would warrant a reductionof the sentence in the interest of justice (see People v Glass, 150 AD3d at 1411-1412; People v Brown, 128 AD3d 1183,1189 [2015], lv denied 27 NY3d 993 [2016]; People v Hughes, 114 AD3d 1021, 1025 [2014], lv denied23 NY3d 1038 [2014]). Defendant's challenge to the qualifications of one of the jurors was notpreserved by a timely and proper objection (see Mehar v City of New York, 260 AD2d554, 556 [1999]; People ex rel. Ostwald v Craver, 272 App Div 181, 183 [1947]), and hisremaining claims, including his assertion that his trial counsel provided ineffective assistance,have been reviewed and determined to be lacking in merit.
Garry, P.J., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's aggregate sentenceis reduced, by operation of law, to 50 years in prison (see Penal Law § 70.30[1] [e] [vi]; People v Glass, 150AD3d 1408, 1409 n 1 [2017]).