| People v Walker |
| 2021 NY Slip Op 00208 [190 AD3d 1102] |
| January 14, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ismael Walker, Also Known as Mike,Appellant. |
Catherine A. Barber, Guilderland, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the Supreme Court (Hogan, J.), rendered December13, 2017 in Schenectady County, upon a verdict convicting defendant of the crimes of rape in thefirst degree, strangulation in the second degree and unlawful imprisonment in the seconddegree.
In January 2017, based on an incident during which defendant allegedly assaulted the victiminside an apartment and in the common hallway and trash room on the same floor, defendant wascharged by indictment with the crimes of burglary in the first degree as a sexually motivatedfelony, two counts of rape in the first degree, criminal sexual act in the first degree, two counts ofstrangulation in the second degree, assault in the second degree and unlawful imprisonment inthe second degree. County Court (Sypniewski, J.) denied defendant's motion to suppress hisstatements to police. Following a trial in Supreme Court, the jury convicted defendant of onecount each of rape in the first degree, strangulation in the second degree and unlawfulimprisonment in the second degree based on conduct in the hallway and trash room, andacquitted him of the remaining counts related to conduct in the apartment. Supreme Courtsentenced defendant to a prison term of 25 years, to be followed by 20 years of postreleasesupervision, on the conviction of rape in the first degree, a consecutive prison term of sevenyears, to be followed by three years of postrelease supervision, on the conviction of strangulationin the second degree[FN*]and a concurrent one-year term of incarceration on the conviction of unlawful imprisonment inthe second degree. Defendant appeals.
The verdict is not against the weight of the evidence. By not renewing his motion for a trialorder of dismissal after the presentation of his defense case, defendant failed to preserve his legalsufficiency challenge (see People vPersen, 185 AD3d 1288, 1289 [2020]; People v Drayton, 183 AD3d 1008, 1008-1009 [2020], lvdenied 35 NY3d 1065 [2020]). "Nevertheless, as part of our weight of the evidence review,we necessarily determine whether the People proved each element of the charged crimes beyonda reasonable doubt" (People v Persen, 185 AD3d at 1289 [citations omitted]; seePeople v Drayton, 183 AD3d at 1009). "[W]here, as here, it would not have beenunreasonable for the jury to have reached a different verdict, we must weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony to determine if the verdict is supported by the weight of theevidence" (People v Persen, 185 AD3d at 1289). "When conducting this review, weconsider the evidence in a neutral light and defer to the jury's credibility assessments" (People v McCabe, 182 AD3d 772,773 [2020] [internal quotation marks and citations omitted]).
To prove rape in the first degree as alleged here, the People were required to show thatdefendant engaged "in sexual intercourse with another [*2]person. . . [b]y forcible compulsion" (Penal Law § 130.35 [1]). As tostrangulation in the second degree, the People had to show that defendant "obstruct[ed thevictim's] breathing or blood circulation . . . and thereby cause[d] stupor, loss ofconsciousness for any period of time, or any other physical injury or impairment" (Penal Law§ 121.12). To prove that defendant committed unlawful imprisonment in the seconddegree, the People had to show that he "restrain[ed] another person" (Penal Law§ 135.05).
Regarding the counts of which defendant was convicted, the victim testified that defendantshoved her, knocked her to the ground in the hallway, choked her to the point that she lostconsciousness, dragged her to the trash room and engaged in sexual intercourse without herconsent. Photographs depicted blood on the apartment door and hallway wall, scratches ondefendant's back and dried blood and bruising on the victim's face, neck, chest, arms and hands.Medical records also noted the victim's injuries. A video from the hallway shows defendantstruggling with the victim, putting his arms and hands around her neck, and then leading her tothe trash room. Two police officers testified that when they discovered defendant and the victimin the trash room, defendant was shirtless, had his pants down and was lying on top of the victimin between her legs. One of the officers specifically testified that it appeared like defendant waspenetrating the victim. The victim had no pants on and mouthed "help me" to that officer.
Defendant testified that, after they had consensual sex in the apartment and the victimingested crack cocaine, she began acting unusual and ran into the hallway. He testified that hefollowed her for her safety and put her in a headlock, which was not tight, to get her undercontrol. According to defendant, because they were partially naked and the apartment door hadlocked when they went into the hallway, they went into the trash room but did not do anythingthere and were standing in different corners of the room when the police arrived.
A different verdict would not have been unreasonable had the jury accepted defendant'sversion of events. However, the victim's lengthy criminal history and addictions to alcohol andcrack cocaine, which were explored during her testimony, did not render her incredible per se.Although the jury did not accept the entirety of the victim's testimony—as is clear from itsacquittal on numerous charges—we defer to the jury's credibility determination in favor ofthe victim's testimony regarding what happened in the hallway and trash room (see People v Jabaut, 111 AD3d1140, 1144 [2013], lv denied 22 NY3d 1139 [2014]). Considering that testimony, aswell as the supporting testimony and exhibits, in a neutral light, the proof established thatdefendant committed strangulation in the second degree, rape in the first degree and unlawfulimprisonment in the second degree in either the [*3]hallway orthe trash room (see People v McCabe, 182 AD3d at 773-774; People v Sostre, 172 AD3d 1623,1626 [2019], lv denied 34 NY3d 938 [2019]; People v Manigault, 150 AD3d 1331, 1332-1333 [2017], lvdenied 29 NY3d 1130 [2017]; People v Haardt, 129 AD3d 1322, 1323-1324 [2015]).
County Court properly denied defendant's suppression motion. The People concede thatdefendant was handcuffed, in custody and had not been Mirandized at the time that he made thestatement at issue. However, the officer did not interrogate defendant when she told him to relaxand that she was in control. Because this simple administrative instruction—which did notcall for a verbal response—could not "reasonably have been anticipated to evoke astatement from . . . defendant," defendant's statement to the officer was spontaneousand need not be suppressed (People v Rivers, 56 NY2d 476, 480 [1982]; see People v Higgins, 124 AD3d929, 932 [2015]; People vStarks, 37 AD3d 863, 864-865 [2007]; compare People v George, 127 AD3d 1496, 1497 [2015]).
Defendant failed to preserve his arguments that the verdict was repugnant (see People vSatloff, 56 NY2d 745, 746 [1982]; People v Burwell, 183 AD3d 173, 183 [2020], lv denied 35NY3d 1043 [2020]; People vPoulin, 159 AD3d 1049, 1052-1053 [2018], lv denied 32 NY3d 940 [2018]),that Supreme Court relied upon improper factors at sentencing (see People v Hooks, 148 AD3d930, 931 [2017], lv denied 29 NY3d 1081 [2017]), and that the person presidingover the trial was allegedly not a judge. Considering defendant's criminal history and the brutalattack on the victim, we cannot say that imposition of the maximum sentence was harsh orexcessive (see People v Wright, 149AD3d 1417, 1418 [2017]; People vJohnson, 131 AD3d 728, 729 [2015]).
Garry, P.J., Egan Jr., Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.
Footnote *:Although Supreme Courtinitially imposed an unlawful five-year term of postrelease supervision for the strangulationconviction, in March 2018 the court resentenced defendant to a legally permissible term of threeyears of postrelease supervision. Defendant did not appeal from the resentencing.