| People v Woods |
| 2009 NY Slip Op 02438 [60 AD3d 1493] |
| March 27, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AnthonyWoods, Appellant. |
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Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.),rendered September 21, 2007. The judgment convicted defendant, upon a jury verdict, ofcriminal sexual act in the first degree (two counts), rape in the first degree, and attemptedcriminal sexual act in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial oftwo counts of criminal sexual act in the first degree (Penal Law § 130.50 [1]), rape in thefirst degree (§ 130.35 [1]), and attempted criminal sexual act in the first degree(§§ 110.00, 130.50 [1]). County Court (Michael F. Pietruszka, J.) did not err indenying the request of defendant for a judicial subpoena duces tecum to enable him to obtain thevictim's medical records. Defendant failed to make the requisite factual showing that it wasreasonably likely that the records would contain information bearing upon the victim's credibility(see People v Chatman, 186 AD2d 1004 [1992], lv denied 81 NY2d 761 [1992]).
Contrary to the further contention of defendant, Supreme Court (Deborah A. Haendiges, J.)did not err in denying his motion for a mistrial based upon the victim's testimony, whichdefendant characterizes as a reference to an "uncharged sexual incident." The record establishesthat the victim made no reference to forcible compulsion by defendant and, in any event, thecourt gave a curative instruction that the jury is presumed to have followed (see People vCruz, 272 AD2d 922, 923 [2000], affd 96 NY2d 857 [2001]).
The court also did not err in refusing to redact portions of defendant's statements to thepolice in which defendant allegedly made references to his past criminal history. The recordestablishes that there was in fact no reference by defendant to his past criminal history but,rather, his reference was to the rape for which he was under arrest at the time.
We reject defendant's further contention that the court abused its discretion in refusing toinstruct the jury that evidence of the victim's previous sexual conduct with defendant could bedeemed evidence that the sexual activity between defendant and the victim in this case was [*2]consensual. The court properly permitted defendant to offer suchevidence (see CPL 60.42), and defense counsel on summation referred extensively tothat evidence. As the Court of Appeals has noted, courts "have long presumed that jurors have'sufficient intelligence' to make elementary logical inferences presupposed by the language of acharge, and hence that defendants are not 'entitled to select the phraseology' that makes suchinferences all the more explicit" (People v Samuels, 99 NY2d 20, 25-26 [2002]), andhere it cannot be gainsaid that jurors are aware that prior sexual encounters that are consensualare relevant in evaluating the victim's credibility in cases involving sexual encounters that areallegedly nonconsensual.
Defendant further contends that the verdict with respect to counts one through four is againstthe weight of the evidence. Viewing the evidence in light of the elements of those crimes ascharged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude thatthe verdict is not against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The sentence is not unduly harsh or severe.
We note, however, that the certificate of conviction incorrectly reflects that defendant wasconvicted of two counts of sodomy in the first degree and one count of attempted sodomy in thefirst degree, and it therefore must be amended to reflect that he was convicted of two counts ofcriminal sexual act in the first degree and one count of attempted criminal sexual act in the firstdegree (see People v Martinez, 37 AD3d 1099 [2007], lv denied 8 NY3d 947[2007]). Present—Hurlbutt, J.P., Martoche, Carni, Green and Pine, JJ.