| People v Chapman |
| 2008 NY Slip Op 06657 [54 AD3d 507] |
| August 21, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Webster L.Chapman, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Washington County (Berke,J.), rendered December 19, 2006, upon a verdict convicting defendant of the crimes of rape in thefirst degree, sexual abuse in the first degree, aggravated sexual abuse in the fourth degree,criminal sexual act in the first degree, unlawfully dealing with a minor (two counts), burglary inthe second degree, criminal mischief in the third degree (two counts) and criminal mischief in thefourth degree (two counts).
Following a jury trial, defendant was convicted of rape in the first degree, sexual abuse in thefirst degree, aggravated sexual abuse in the fourth degree, criminal sexual act in the first degree,two counts of unlawfully dealing with a minor, burglary in the second degree, two counts ofcriminal mischief in the third degree and two counts of criminal mischief in the fourth degree,and he was sentenced to an aggregate prison term of 58 to 64 years. The convictions on the sexoffenses and unlawfully dealing with a minor stemmed from three incidents that occurred duringFebruary and March 2006, which involved the 17-year-old girlfriend of defendant's cousin. Theremaining convictions stemmed from several acts of vandalism that occurred at the residence ofJoan Osborne, defendant's former mother-in-law, between March and May 2006, during whichtime defendant's former wife, Barbara Chapman, and their three children were living there.[*2]
On appeal, defendant first argues that the convictions ofrape in the first degree, criminal sexual act in the first degree and aggravated sexual abuse in thefourth degree are not supported by legally sufficient evidence. Although this issue was notproperly preserved at trial since defense counsel made only a general motion to dismiss (seePeople v Finger, 95 NY2d 894, 895 [2000]), upon our examination of this record, weconclude that defendant's arguments have merit and we reverse his convictions on those countsas a matter of discretion in the interest of justice (see CPL 470.15 [3]).
Defendant was charged with rape in the first degree pursuant to Penal Law § 130.35(1) and criminal sexual act in the first degree pursuant to Penal Law § 130.50 (1).Specifically, the indictment alleged that defendant engaged in sexual intercourse with the victimby forcible compulsion and that he engaged in oral sexual conduct with the victim by forciblyplacing his mouth on her vagina. As is relevant here, forcible compulsion is established by proofof actual physical force or by proof of a threat, either express or implied, that causes a person tofear "immediate death or physical injury to himself, herself or another person" (Penal Law§ 130.00 [8] [b]).
The victim's testimony here did not establish that defendant used actual physical force duringthe alleged incident. She testified on direct examination that she was lying down in defendant'sbed when he began to "touch[ ] [her] over or under [her] clothes." According to the victim, sheinitially ignored defendant, but eventually performed consensual oral sex on him in the hope thathe would leave her alone. However, defendant then said that he wanted to perform oral sex onher. The victim testified that defendant did so despite her verbal protest. On cross-examination,the victim added that, after defendant performed oral sex on her, he inserted his penis into hervagina without her consent. Although this testimony was sufficient to establish that the sexualconduct occurred without the victim's consent, it did not establish that defendant used physicalforce.
Nor was there evidence that the sexual contact was compelled by threat or fear. Defendant'sstatement to the victim to "put out or get out," by which defendant apparently meant that thevictim had to leave his residence if she did not comply with his demands, was not made at thetime of the incident in question and, in any event, does not constitute a threat that would causethe victim to fear immediate death or injury. Indeed, the victim admitted that, after defendantmade that statement, she actually left the residence three or four times but willingly returned.Likewise, although the victim testified that defendant could be "mean" and "loud" and had a badtemper when he drank alcohol, she stated that, on those occasions, she would "just sit[ ] therelistening to him" and that "[h]e wouldn't actually say too much but he would like to complainabout everything." Again, this testimony is insufficient to establish that defendant used the threatof imminent death or injury to compel the victim to engage in sexual conduct with him.Accordingly, viewing the evidence in the light most favorable to the prosecution, we find that theevidence presented was legally insufficient to support the convictions of rape in the first degreeand criminal sexual act in the first degree as charged in counts one and four of the indictment (see People v Fuller, 50 AD3d1171, 1175 [2008]; compare Peoplev Val, 38 AD3d 928, 929 [2007], lv denied 9 NY3d 852 [2007]; People vBlack, 304 AD2d 905, 906-908 [2003], lv denied 100 NY2d 578 [2003]).
With regard to defendant's conviction of aggravated sexual abuse in the fourth degree(see Penal Law § 130.65-a [1] [a]), the People's theory was that defendant inserteda vibrator into the victim's vagina at a time when she was physically helpless, and thus unable toconsent, as a [*3]result of intoxication. A person is considered tobe physically helpless when he or she "is unconscious or for any other reason is physically unableto communicate unwillingness to an act" (Penal Law § 130.00 [7]). According to thevictim, she became intoxicated, eventually vomited and somehow "ended up back in[defendant's] room," where she again performed consensual oral sex on him. He then inserted thevibrator into her vagina, which she did not initially protest. The victim testified that sheeventually told defendant to stop, but that he did not do so. Although this testimony wassufficient to establish that the sexual conduct was not consensual and occurred at a time when thevictim was intoxicated, it also established that the victim was conscious at the time of theincident and was able to—and, in fact, did—communicate to defendant herunwillingness. Accordingly, the evidence was also legally insufficient to support the convictionof aggravated sexual abuse in the fourth degree under count six of the indictment (see Peoplev Conto, 218 AD2d 665, 666 [1995], lv denied 87 NY2d 845 [1995]; comparePeople v Fuller, 50 AD3d at 1174 [the victim became intoxicated, "passed out" and awoke tofind the defendant with his finger in her vagina]; People v Sensourichanh, 290 AD2d886, 886-887 [2002] [after drinking alcohol and smoking marihuana, the victim fell asleep andlater awoke to the pain of someone having sexual intercourse with her]; People vHimmel, 252 AD2d 273, 275 [1999], lv denied 93 NY2d 899 [1999] [the victim wasaware that the defendant was sodomizing him, but he was so intoxicated that he was unable tospeak]).
Contrary to defendant's contention, we find that the evidence was legally sufficient to supportdefendant's convictions of burglary in the second degree (count 11), two counts of criminalmischief in the third degree (counts 10 and 13) and one count of criminal mischief in the fourthdegree (count 12), and the verdicts on said counts, as well as count nine charging criminalmischief in the fourth degree, were not against the weight of the evidence. However, because wealso find that defendant was deprived of his right to the effective assistance of counsel, a newtrial is warranted on these counts, as well as the remaining counts of the indictment for whichdefendant was found guilty (counts two, three and seven). Notably, counsel inexplicably failed torequest severance of the charges in the indictment even though it appears that they were not all"joinable" offenses pursuant to CPL 220.20, and it is likely that defendant was unduly prejudicedby the joint trial on all the charges.[FN*]In addition, although the failure to request a pretrial hearing does not necessarily constituteineffective assistance, counsel did not pursue a Molineux/Ventimiglia hearing to seekpreclusion of evidence of defendant's prior bad acts. Although evidence of a defendant's prior badacts or uncharged crimes may be admissible when the probative value outweighs the prejudicialeffect and "if it helps to establish some element of the crime under consideration or is relevantbecause of some recognized exception to the general rule," it may not be used to prove adefendant's criminal propensity or general bad character (People v Alvino, 71 NY2d 233,241 [1987]; see People v Ventimiglia, 52 NY2d 350, 359 [1981]; People vMolineux, 168 NY 264, 293 [1901]). Here, the People elicited testimony at trial thatdefendant threatened to kill his former wife by slitting her throat and then planned to blame it onthe Mafia because he had connections to organized crime. In addition, one witness, who was nota victim, testified that defendant was verbally abusive and that he was afraid that defendantwould injure him while he was asleep. This testimony, and other instances of similarlyprejudicial hearsay testimony, was not objected to by defense counsel, nor did he request anylimiting instructions.
Alone, none of these errors or any of the other unexplained omissions—including[*4]counsel's waiver of an opening statement, waiver ofcross-examination of certain witnesses, giving a cursory and unorganized closing statement andfailing to object to inflammatory statements made during the prosecution's closing argument(which included calling defendant a "slime ball," labeling a bag owned by defendant as a"terrorist pack" and repeatedly stating that defendant "terrorize[d]" his wife andchildren)—were sufficient to constitute ineffective assistance of counsel. However,considering the totality of the circumstances presented here, we are convinced that no legitimatetrial strategy existed for counsel's actions, which, when considered in the aggregate, depriveddefendant of meaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981];People v Miller, 11 AD3d 729[2004]).
Given the foregoing, defendant's remaining arguments are academic.
Cardona, P.J., and Kavanagh, J., concur.
Carpinello, J. (dissenting). We respectfully dissent. First, viewed in a light most favorable tothe People, the trial record persuades us that the unpreserved issue pertaining to the legalsufficiency of the evidence is without merit. Moreover, we take exception to the majority'sfinding that defendant's trial counsel was ineffective. We would therefore affirm defendant'sconviction on all counts.
Exceptionally strong circumstantial evidence was presented at trial establishing thatdefendant, angry over the breakup of his marriage, committed numerous acts of vandalismagainst his ex-wife and her mother during a 12-week period in 2006 (defendant's ex-wife, alongwith their three young children, lived in the mother's home). According to testimony, on severaloccasions in the middle of the night, someone twice entered their locked garage slashing tires andscratching a vehicle, sprayed-painted obscenities on the garage door, smashed the ex-wife'sbedroom window as she slept and cut wires to the house. Testimony further established that therewere burn marks on the outside of the garage one particular morning. According to the ex-wife,defendant told her that these events "would stop" and he would leave her alone if she broke upwith her then current boyfriend.
During this same time period, defendant told his roommate, Donald Palmer, of his desire "todo things to [his ex-wife's] home" in retaliation for her relationship with another man eventhough "the children were in there." Defendant shared his plans to spray paint obscenities on thehouse—indeed Palmer was with him when he purchased the spray paint—to cut thewires to her house and to burn it down. Defendant also shared his desire to murder his ex-wifeand blame it on the "Mafia." According to Palmer, after defendant would state his intention tocommit certain acts against his ex-wife, he would leave the house alone at night clad incamouflage, only to return home in the wee hours of the morning. Palmer would later learn thatsuch acts took place. Defendant confessed to Palmer that he spray-painted the house and slashedthe tires. There was also strong evidence establishing that, during this very same time period,defendant had nonconsensual sexual contact with Palmer's girlfriend (hereinafter the victim), atroubled 17 year old who was no longer living with her parents because of problems and wastherefore staying with Palmer at defendant's house. Notably, Palmer, in addition to providinghighly relevant testimony about the acts committed against defendant's ex-wife and her mother,provided highly relevant testimony about the acts committed against the victim.[*5]
With this backdrop, we address first the issue of whetherthe evidence at trial was legally sufficient to support the charges of rape in the first degree andcriminal sexual act in the first degree against the victim. The majority finds that the element offorcible compulsion was not established by the People to support either charge. Viewing theevidence at trial most favorable to the People and considering whether a rational juror could haveconcluded that all elements of these crimes were established beyond a reasonable doubt (seePeople v Cabey, 85 NY2d 417, 421 [1995]), we are satisfied that all such elements, includingforcible compulsion, were so established.
The subject charges arise out of the same incident. Testimony established that one eveningwhile the victim was at defendant's home, she drank an entire bottle of alcohol that had beenprovided to her by him. She was highly intoxicated and physically ill when defendant begantouching her sexually. According to her testimony, she repeatedly protested his efforts tosodomize her and to have intercourse with her but he continued to do so. The victim repeatedlyacknowledged that the incident was "forced" sexual intercourse. Notably, Palmer testified that heheard the victim's screams of protest during this incident and ultimately came to her assistance.
As noted by this Court, "[t]he element of forcible compulsion is examined through the stateof mind produced in the victim, and relevant factors include the age of the victim, the relativesize and strength of the defendant and victim, and the nature of the defendant's relationship to thevictim" (People v Val, 38 AD3d928, 929 [2007], lv denied 9 NY3d 852 [2007] [quotation marks and citationomitted]; see People v Davis, 21AD3d 590, 591-592 [2005]). Here, the victim was a troubled 17-year-old girl who, at thetime of the subject incident, was highly intoxicated and physically ill. While the record does notreveal her size, the jury was obviously able to take note of same, as well as her generaldemeanor.[FN1]Defendant, on the other hand, was described as a "[p]retty strong guy," was 38 years old, six feettall and weighed 195 pounds. Significantly, according to the victim, during the relatively shortperiod of time that she resided in defendant's home, she witnessed his violent temper and heardhim threaten to kill himself. She also heard defendant state that he burned down a building, thathe hated his ex-wife, that he wished his ex-wife were dead and that "[h]e wished somethingwould happen to her." She further testified that defendant would get "really mad" when shewould not do what he wanted, that she was scared of him and that he was "mean" (cf. People v Fuller, 50 AD3d1171, 1175 [2008]).
While the majority correctly asserts that defendant's threat to kick the victim out of his homeif she did not engage in sexual acts with him did not constitute a threat that put her in fear ofinjury or death, this threat does establish his position of dominance and authority over her, whichis certainly a relevant factor in considering the issue of forcible compulsion (see People vBeecher, 225 AD2d 943, 945 [1996]). Given the victim's account of what transpired, herhighly intoxicated state, her provoked screams which were heard by Palmer, her stated fear ofdefendant, her age and stature as compared to his and defendant's position of dominance overher, we are satisfied that there exists a valid line of reasoning and permissible inferences whichcould lead a rational jury to conclude, as this one obviously did, that defendant committed theacts of sexual intercourse and oral sexual contact by means of forcible compulsion (see People v [*6]Brown, 39 AD3d 886, 888 [2007], lv denied 9NY3d 873 [2007]; People v Val, supra; People v Fleegle, 20 AD3d 684, 687 [2005], lv denied 5NY3d 828 [2005], cert denied 547 US 1152 [2006]; People v Oglesby, 12 AD3d 857, 859-860 [2004], lv denied5 NY3d 792 [2005]; People vStephens, 2 AD3d 888, 889 [2003], lv denied 2 NY3d 746 [2004]; People vBlack, 304 AD2d 905, 908 [2003], lv denied 100 NY2d 578 [2003]; People vSmith, 302 AD2d 677, 679 [2003], lv denied 100 NY2d 543 [2003]; People vSehn, 295 AD2d 749, 750-751 [2002], lv denied 98 NY2d 732 [2002]; People vJackson, 290 AD2d 644, 646 [2002], lv denied 98 NY2d 711 [2002]; People vRichardson, 284 AD2d 920, 921 [2001]; People v Bailey, 252 AD2d 815, 816-817[1998], lv denied 92 NY2d 922 [1998]; People v Beecher, supra).
Likewise, viewing the evidence most favorable to the prosecution, we find a rational jurorcould have concluded that it was legally sufficient to establish all of the elements of theaggravated sexual abuse in the fourth degree charge, particularly the disputed element of physicalhelplessness. Notably, "[t]he state of the victim's physical helplessness at any given moment islargely a question of fact" for the jury (People v Teicher, 52 NY2d 638, 649 [1981]). Thevictim's testimony on this particular count established that on another occasion during the timeperiod she resided with defendant, she was again highly intoxicated and physically ill as a resultof drinking almost an entire bottle of alcohol. In her highly intoxicated state, she "ended up" indefendant's bedroom with no recollection as to how she got there. At this time, defendant forciblyplaced a vibrator into her vagina.
Her testimony makes clear that she did not initially protest this act because of her physicalcondition, that is, because she was so intoxicated and did not feel well. Significantly, sheacknowledged that she was so sick from drinking that she did not "feel like" fighting defendant, aclear indication of physical helplessness in our opinion or, at the very least, a permissibleinference of same. Thus, even though, as noted by the majority, the victim eventuallycommunicated an unwillingness to defendant, a clear permissible inference exists that she wasphysically helpless at the time of the act because of the effects of alcohol such that thisconviction was based upon legally sufficient evidence (see People v Himmel, 252 AD2d273, 275-275 [1999], lv denied 93 NY2d 899 [1999]). Stated otherwise, "the trier of factwas entitled to infer that she lacked capacity to consent to the original touching because of hergenerally weakened condition [from the effects of being highly intoxicated and ill]" (People vTeicher, 52 NY2d at 646).
As to the issue of trial counsel's effectiveness, we find that counsel, in the face of strongevidence of guilt, pursued a cogent defense which, significantly, was partiallysuccessful.[FN2]In fact, trial counsel obtained an acquittal on nearly one third of the counts against defendant,including the more serious charges of criminal sexual act in the first degree, arson in the seconddegree and reckless endangerment in the first degree. As to those counts stemming from the actsagainst his ex-wife and her mother, trial counsel repeatedly highlighted the lack of any directevidence linking defendant to these crimes, elicited testimony that arson was committed on theirproperty after defendant was incarcerated and suggested the motive of others to committhe charged acts. With respect to those counts stemming from conduct pertaining to the victim,trial counsel highlighted conceded consensual sexual acts between them, highlighted significant[*7]inconsistencies between the victim's testimony and that ofPalmer on key events and otherwise made reasonable attempts to undermine her credibility. Trialcounsel also effectively highlighted the complete dearth of physical evidence substantiating acount of the indictment charging him with criminal sale of a controlled substance in the thirddegree, and defendant was acquitted of this charge as well.
Notwithstanding, the majority claims that numerous errors on the part of trial counsel,considered cumulatively, deprived defendant of meaningful representation. We cannot agree.Trial counsel had no duty to make an opening statement (see CPL 260.30 [4]; seegenerally People v Rojas, 97 NY2d 32, 38 [2001]) and the only two witnesses for whom hehad no questions were auto body employees who repaired the vandalized vehicles and who thushad no relevant information to promote the defense strategy. Thus, the permissible decisions towaive opening statement and forgo these cross-examinations cannot fairly be characterized as"errors" on his part or indications of ineffectiveness.
Additionally, we find nothing "cursory [or] unorganized" about trial counsel's closingstatement. Consistent with the defense theory as to those charges relating to the victim, trialcounsel pointed out inconsistencies in testimony, pointed out the lack of direct evidencepertaining to the drug charge (defendant was acquitted of this count), questioned whether any actof the sexual contact was nonconsensual since the victim admitted during her testimony that shewas willing to do certain acts (defendant was acquitted of that count of the indictment allegingthat he forced the victim to perform oral sex on him) and highlighted the lack of evidence of a"forceful threat" against her to establish rape. As to those charges against his ex-wife, and againconsistent with the defense theory, trial counsel pointed out the lack of any eyewitness placinghim at the scene, pointed out the lack of physical evidence connecting him to these crimes,questioned defendant's ability to carry out the crimes in the manner described by Palmer andpointed out that another fire was set on the property after his incarceration (defendant wasacquitted of arson, reckless endangerment and endangering the welfare of a child, which were allbased on allegations of burn marks found on the house prior to his incarceration).
While trial counsel sought, but apparently never pursued, a Molineux hearing, theprimary bad act evidence that came out at trial concerned defendant's prior threats against hisex-wife. In our view, these threats were highly relevant to circumstantially prove defendant'smotive and intent to commit the charged crimes against her and also highly relevant to establishthe victim's reasonable fear of him vis-à-vis the forcible compulsion element of two of thecharged crimes, with the probative value outweighing the potential for prejudice (see Peoplev Molineux, 168 NY 264, 293 [1901]; see e.g. People v Laviolette, 307 AD2d 541,542-543 [2003], lv denied 100 NY2d 643 [2003]; People v Cobenais, 301 AD2d958, 962 [2003], lv denied 99 NY2d 653 [2003]; People v Jones, 289 AD2d 1010[2001], lv denied 97 NY2d 756 [2002]; People v Martin, 245 AD2d 833,833-834 [1997], lv denied 92 NY2d 856 [1998]; People v Johnson, 277 AD2d702, 705 [2000], lv denied 96 NY2d 831 [2001]; People v Saunders, 210 AD2d164 [1994], lv denied 84 NY2d 1038 [1995]). Any chance in successfully excludingthese prior threats was minimal. To be sure, while trial counsel was indeed "remiss" in hishandling of the evidence concerning defendant's prior bad acts and his representation ofdefendant was not "error-free" (People vEchavarria, 53 AD3d 859, 864 [2008]), when viewed in the totality of the circumstancesand noting the high burden on counsel to demonstrate the claim (see People v Flores, 84NY2d 184, 189 [1994]), we cannot conclude that any act or omission on his part, viewed ininsolation or cumulatively, so prejudiced defendant's right to a fair trial that he did not receivemeaningful representation (see People v Benevento, 91 NY2d 708, 713-714[*8][1998]; People v Echavarria, supra).[FN3]"[T]he standard is whether defendant was provided a fair trial, not a perfect one" (People v Wright, 5 AD3d 873, 877[2004], lv denied 3 NY3d 651 [2004]). To this end, we find it noteworthy that trialcounsel was an experienced defense attorney—indeed he was the Chief Public Defender inthe county—and that, at the conclusion of the trial, County Court, sua sponte,"compliment[ed] both attorneys for preparing for the trial and presenting their evidence andconducting themselves in a very admirable fashion."[FN4]Thus, defendant's convictions should be affirmed in every respect.
Spain, J., concurs.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, dismiss counts 1, 4 and 6 of the indictment, and matter remitted to the County Court ofWashington County for a new trial on counts 2, 3, 7, 9, 10, 11, 12 and 13 of the indictment.
Footnote *: At arraignment, even CountyCourt questioned the propriety of including all of the charges in one indictment, but defensecounsel made no comment or objection.
Footnote 1: During summation, theprosecutor noted the jury's "chance to see [the victim]" and went on to describe her as a sad childwith low self-esteem.
Footnote 2: Tellingly, the jury reached itsverdict—finding defendant guilty of 11 counts of the indictment and not guilty of fivecounts—in less than 2½ hours with no requests of any kind.
Footnote 3: With respect to trial counsel'sfailure to request a limiting instruction regarding testimony of his prior threats, this Court hasnoted that "the failure to make [such] request could have been a strategic decision to avoidhighlighting that testimony" (People vCherry, 46 AD3d 1234, 1238 [2007], lv denied 10 NY3d 839 [2008]).
Footnote 4: The majority argues that trialcounsel was deficient for failing to request a severance of the charges in the indictment. We arecompelled to note that defendant's appellate counsel, despite filing a 105-page brief and 24-pagereply brief, does not even raise this claim. This Court does not ordinarily raise and considerissues not briefed by the parties and we would not do so here.