| People v Forney |
| 2020 NY Slip Op 02949 [183 AD3d 1113] |
| May 21, 2020 |
| Appellate Division, Third Department |
[*1](May 21, 2020)
| The People of the State of New York,Respondent, v Jeffrey A. Forney Jr., Appellant. |
Easton Thompson Kasperek Shiffrin, Rochester (Brian Shiffrin of counsel), forappellant.
Joseph G. Fazzary, District Attorney, Watkins Glens (John C. Tunney of counsel),for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Schuyler County (Morris,J.), rendered July 20, 2017, convicting defendant following a nonjury trial of the crimesof predatory sexual assault (two counts) and unlawfully dealing with a child in the firstdegree.
Defendant was charged by indictment with three counts of predatory sexual assaultand one count of unlawfully dealing with a child in the first degree. The charges aroseafter defendant, Aaron Bowen and Lyle Beebe met an 18-year-old female (hereinafter thevictim) and brought her to defendant's house, where they all drank alcohol; the victimawoke in the hospital the next day with no recollection of most of the prior night. A jointjury trial of defendant and Bowen ended in a mistrial due to the jury being deadlocked.Thereafter, defendant's matter was severed from Bowen's and defendant waived his rightto a jury trial. At his bench trial, the parties stipulated into evidence the transcript andexhibits from the jury trial, although County Court could not consider Bowen'sstatements as evidence against defendant. The court found defendant guilty of two countsof predatory sexual assault, for which it imposed concurrent prison terms of 21 years tolife, and one count of unlawfully dealing with a child in the first degree, for which itimposed a concurrent one-year term of incarceration. Defendant appeals.
The verdict as to the two counts of predatory sexual assault is not against the weightof the evidence.[FN1] "A weight of the evidence reviewrequires this Court to first determine whether, based on all the credible evidence, adifferent finding would not have been unreasonable. Where a different finding would nothave been unreasonable, this Court must weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony to determine if the verdict is supported by the weight of the evidence" (People v Stover, 178 AD3d1138, 1139 [2019] [internal quotation marks, brackets and citations omitted], lvdenied 34 NY3d 1163 [2020]). "A person is guilty of predatory sexual assault whenhe or she commits the crime of rape in the first degree [or] criminal sexual act in the firstdegree . . . and when . . . [h]e or she has previously beensubjected to a conviction for a felony defined in [Penal Law article 130]" (Penal Law§ 130.95 [3]). The last element was satisfied by defendant's admission thatin 2013 he was convicted of attempted sexual abuse in the third degree. The definitionsof rape in the first degree and criminal sexual act in the first degree require certain sexualactivity with another person who, as relevant here, "is incapable of consent by reason ofbeing physically helpless" (Penal Law §§ 130.35 [2]; 130.50 [2]).Defendant's former girlfriend testified that defendant admitted to her that he engaged invaginal intercourse and anal sexual conduct with the victim. Considering that evidence,along with proof that the victim complained of soreness in her vaginal and anal areas,physical helplessness remains as the only element truly in dispute.
" 'Physically helpless' means that a person is unconscious or for any otherreason is physically unable to communicate unwillingness to an act" (Penal Law§ 130.00 [7]; seePeople v Edison, 167 AD3d 769, 770 [2018], lv denied 33 NY3d 947[2019]). "A person who is asleep or unable to communicate as a result of voluntaryintoxication is considered to be physically helpless" (People v Bjork, 105 AD3d 1258, 1260 [2013] [citationsomitted], lv denied 21 NY3d 1040 [2013], cert denied 571 US 1213[2014]; see People v Himmel, 252 AD2d 273, 276 [1999], lv denied 93NY2d 899 [1999]). The victim testified that she remembers going to defendant's house,playing pool, drinking two shots of vodka and a mixed drink, then nothing until thefollowing afternoon when she awoke at the hospital. She did not recall engaging in anysexual activity, nor did she recall being found by the side of the road, riding to thehospital in an ambulance, or speaking to police or medical personnel throughout themorning. Beebe testified that the victim drank vodka shots and a mixed drink, begandrinking swigs of vodka from the bottle, then drank three quarters of a pint glass ofvodka rather quickly, as if it were water. After she consumed the glass of vodka, thevictim stumbled to a counter and held herself up with her elbows. Beebe testified that thevictim became "incoherent," "could hardly talk" and "could hardly stand on her own twofeet without any type of support," and her motor functions were shutting down, "[h]erlegs were [like] noodles," the bottom half of her body was "limp" like a "rag doll" andshe had little to no control. Her condition appeared to be worsening and Beebe thoughther physical state reflected the symptoms of alcohol poisoning. Beebe left defendant'shouse at approximately 2:30 a.m., and the victim had not consumed alcohol for 30 to 40minutes before he left.
Two witnesses testified that when they found the victim by the road between 6:15a.m. and 6:30 a.m., she was unresponsive, had slurred speech when she finally respondedand was unable to get up or even roll herself over. A hospital blood test at 8:40 a.m.revealed that her blood alcohol content (hereinafter BAC), when converted to a wholeblood figure as required for legal proceedings, was between .22% and .23%. ThePeople's expert, Mark Waruch, conducted a reverse extrapolation[FN2] and determined that thevictim's BAC would have been between .28% and .38% at 2:40 a.m. He testified that aBAC between .20% and .30% reflects dramatic impairment, and between .30% and .39%seriously impacts an individual such that the person is not able to move about on his orher own or speak coherently, and may drift in and out of consciousness.
On recorded phone calls from jail, when defendant was discussing the victim and herstatement to police, he said that "obviously she don't know" and he was "pretty sure shedoesn't know what happened." He also indicated his belief that he could not be charged ifno DNA evidence was discovered; this would not be correct if he believed that the victimhad been conscious and able to remember the sexual activity. The evidence of thevictim's extreme intoxication from at least 2:00 a.m. until after she arrived at the hospitalindicates that she was physically helpless throughout that time, which necessarilyincludes the time of defendant's sexual activity with her. Although a different verdictwould not have been unreasonable had the trier of fact found some of the witnessesincredible, the verdict is not against the weight of the evidence.
Defendant acknowledges that he did not object to Waruch's testimony or move tostrike it on the basis that Waruch lacked the necessary foundation for his calculations.Hence, that argument is not preserved, and we decline to exercise our interest of justicejurisdiction. Nevertheless, defendant also raises counsel's failure to assert that argumentas part of his allegations of ineffective assistance of counsel.
Defendant argues that he was denied the effective assistance of counsel due todefense counsel's failure to (1) seek preclusion of Waruch's reverse extrapolationtestimony as lacking foundation, (2) object to the victim's testimony that she did notconsent to engaging in sexual acts, despite her inability to recall anything during the timein which the acts occurred, and (3) object to the testimony of defendant's formergirlfriend that, based on her conversations with defendant, she assumed that the victimwas unconscious when defendant engaged in the sexual acts at issue. "To establish aclaim of ineffective assistance of counsel, [a] defendant is required to demonstrate thathe [or she] was not provided meaningful representation and that there is an absence ofstrategic or other legitimate explanations for counsel's allegedly deficient conduct" (People v Lancaster, 143 AD3d1046, 1051 [2016] [internal quotation marks and citations omitted], lvdenied 28 NY3d 1147 [2017]). In that regard, this Court must evaluate the totality ofcounsel's representation, considering "whether counsel made appropriate motions, setforth a cogent defense theory, interjected viable objections, conducted meaningfulcross-examination, gave an effective summation and otherwise presented a zealousdefense" (People v Bush,107 AD3d 1302, 1303 [2013]).
Prior to trial, counsel moved to exclude testimony based on reverse extrapolation, orfor a Frye hearing to challenge its admissibility. County Court denied the motion,finding that reverse extrapolation—a process by which an expert renders anopinion regarding a person's BAC at an earlier time based on calculations from thatperson's known BAC at a later time—had already been deemed admissible by thecourts (see e.g. People vMenegan, 107 AD3d 1166, 1168-1169 [2013]; People v Cross, 273AD2d 702, 703 [2000]; People v MacDonald, 227 AD2d 672, 674-675 [1996],affd 89 NY2d 908 [1996]). This Court has previously held that, "[a]ssuming theexpert in question is qualified and a proper foundation has been laid for such opinion,reverse extrapolation testimony may be admitted" (People v Menegan, 107 AD3dat 1169).
Defendant does not challenge Waruch's qualifications as an expert. Rather, defendantcontends that Waruch did not have an adequate foundation for rendering an opinionregarding the victim's BAC at the time of the incident. Specifically, defendant asserts thatWaruch did not have enough known facts to support the necessary assumptions toproperly conduct a reverse extrapolation. Counsel appeared to be well-versed in thescientific aspects of this theory, as well as the relevant literature on the topic. Theprosecution and defense experts disagreed on what assumptions are necessary to conductan accurate reverse extrapolation. Waruch explained that for legal purposes, a wholeblood BAC was necessary, whereas the hospital test provided a blood serum BAC.Waruch converted the serum BAC by performing two calculations, one using an averagewhole blood value and the other using a conservative whole blood value. He then usedthose two base values to perform the reverse extrapolation under three analyses toaccount for varying rates of alcohol metabolization: fast, average and slow rates. Thesesix calculations, based on estimated rates of elimination of alcohol from the victim'ssystem, produced a range for the victim's BAC at 2:40 a.m. of .28% to .38%. AlthoughWaruch did not know the exact time that the victim stopped consuming alcohol and,therefore, did not definitively know that she was in a post-absorptive state at 2:40 a.m.,he testified that 80% of the alcohol a person consumes is absorbed into the system within10 minutes and his review of Beebe's statement revealed that the victim ceasedconsuming alcohol before 2:00 a.m. No other evidence indicated that the victimconsumed alcohol after that time. Thus, it appears unlikely that an objection to Waruch'sopinion testimony based on lack of foundation would have been successful. Even so,counsel vigorously cross-examined Waruch and presented his own expert whochallenged Waruch's calculations and opined that not enough information was known tomake an accurate BAC calculation through reverse extrapolation.
As for the victim's testimony, when asked if she consented to any sexual acts withdefendant or Bowen, she testified that she did not consent, she did not want to have sexthat night and she did not remember engaging in any sexual acts. Defendant may betechnically correct that a person should not be able to definitively testify that he or shedid not do or say something during a period for which he or she has no memory, and anobjection on that basis may have been sustained. However, County Court found that thevictim was physically helpless, meaning that she was incapable of giving consent in anyevent. Moreover, counsel may have chosen not to object, but to instead use the victim'sinsistence to attack her credibility.
Defendant's former girlfriend testified that she assumed from her conversations withdefendant that the victim was incoherent or unconscious at the time of the incident, butdefendant had never said so. However, her testimony indicates that this belief regardingthe victim's condition was actually a presumption based on the context of theconversations. Although a witness may not speculate, he or she may testify as to his orher understanding—from the context of overall conversations—ofsomething that was not explicitly stated. An objection would likely not have beensuccessful. In any event, the witness clarified that defendant never stated that the victimwas incoherent or unconscious and that the witness had made an assumption. Counselmay have strategically chosen not to inquire any further, so as to avoid discussion of thespecific basis for her assumption, which would likely have been harmful to the defense(see People v Richardson,162 AD3d 1328, 1332 [2018], lv denied 32 NY3d 1128 [2018]). Leavingthe testimony as it was allowed counsel to attack the credibility of the witness becauseshe was basing her testimony on assumptions.
Counsel made pretrial motions to dismiss the charges and preclude evidence, raisednumerous objections, presented a cogent defense, meaningfully cross-examined thePeople's witnesses, presented an expert who challenged the People's expert testimony anddelivered a strong summation. Counsel was successful in obtaining a hung jury in thefirst trial and acquittal of one felony count in the second trial. Considering counsel'soverall performance, we cannot conclude that defendant was deprived of meaningfulrepresentation (see People vPitt, 170 AD3d 1282, 1286 [2019], lv denied 33 NY3d 1072 [2019]; People v McCauley, 162 AD3d1307, 1310-1311 [2018], lv denied 32 NY3d 939 [2018]).
Garry, P.J., Egan Jr., Lynch and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1:Defendant does notchallenge the verdict on the count of unlawfully dealing with a child in the first degree.
Footnote 2:Reverse extrapolation issometimes called retrograde extrapolation.