| People v Cecunjanin |
| 2009 NY Slip Op 07892 [67 AD3d 1072] |
| November 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ZuferCecunjanin, Appellant. |
—[*1] Timothy Blatchley, Special Prosecutor, Plattsburgh, for respondent.
Peters, J. Appeal from a judgment of the County Court of Franklin County (Richards, J.),rendered August 4, 2008, upon a verdict convicting defendant of the crimes of attempted sexualabuse in the first degree and unlawful imprisonment in the second degree.
The victim, accompanied by Lisa Yando and Angela King, visited a night club owned bydefendant in the Village of Malone, Franklin County. They arrived around midnight but Yandosoon left them. The victim, King and one of King's friends, Melissa Martin, remained at the clubinto the early morning hours of the following day. After socializing with others and dancing, thevictim, who had previously come to know defendant in the course of her employment, sat forsome time in a corner of the bar with him and three of his family members. During that time, thevictim became increasingly intoxicated, eventually reaching a point where she was observed tobe having difficulty keeping herself upright. Defendant then allegedly began trying to kiss thevictim and place his hands up her shirt. Shortly thereafter, defendant allegedly escorted thevictim into an adjacent storage room and shut the door. Concerned over this, King called Yandowho, in turn, summoned the victim's parents. According to the victim, while in the storage room,defendant continued in his attempts to place his hand under her shirt and kiss her, and also triedto persuade her to go with him to an upper floor of the building. Although the victim tried toleave the storage room on more than one occasion, defendant prevented her from doing so. Whenthe victim's parents arrived, her father retrieved the victim from the storage room [*2]and walked her outside, where the police were waiting.
Defendant was thereafter indicted for attempted sexual abuse in the first degree, unlawfulimprisonment in the second degree and forcible touching. Following a jury trial, defendant wasconvicted of attempted sexual abuse in the first degree and unlawful imprisonment in the seconddegree.[FN*]He was thereafter sentenced to terms of incarceration of one year on the attempted sexual abusecount and 180 days on the unlawful imprisonment count. He now appeals.
Defendant first challenges the sufficiency of the evidence supporting his conviction ofattempted sexual abuse in the first degree, arguing that the People presented no evidence bywhich the jury could have inferred that the victim was physically helpless. In order to establishthe crime of attempted sexual abuse in the first degree, the People were required to show thatdefendant attempted to subject the victim to sexual contact at a time when she was "incapable ofconsent by reason of being physically helpless" (Penal Law § 130.65 [2]; seePenal Law § 110.00). A person is considered to be "physically helpless" when he or she"is unconscious or for any other reason is physically unable to communicate unwillingness to anact" (Penal Law § 130.00 [7]).
Here, the People proffered extensive evidence of the victim's state of inebriation, includingproof that her blood alcohol content was found to be .267% shortly after the incident, as well astestimony from the victim, King and Martin regarding the victim's physical condition. Accordingto King, when she returned with Martin from the outdoor patio, she observed the victim slouchedover in her seat with "her head down . . . just kind of lifeless just sitting there" withdefendant's hand under her shirt. Similarly, Martin testified that the victim was "bobbing herhead" and "slouched over" in her stool when defendant had his hand on the victim's inner thighs.Although the victim recalled placing her arms together over her chest at one point in order toprevent defendant from succeeding in putting his hands up her shirt, she also testified that thingswere "pretty blurry" after that and the next thing she remembers was hearing a door slam shutafter defendant pulled her in a room. Defendant asserts that the victim's recollection isinconsistent with Martin's and King's observations of the victim's condition. However, the factthat the victim was able to resist defendant's advancements at one point in time does not meanthat she retained this ability throughout the entire incident. Indeed, "[t]he state of the victim'sphysical helplessness at any given moment is largely a question of fact" for the jury (Peoplev Teicher, 52 NY2d 638, 649 [1981]). Viewing the evidence in a light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]; People v Collins, 56 AD3d 809,810 [2008], lv denied 11 NY3d 923 [2009]), there was a valid line of reasoning andpermissible inferences from which the jury could conclude that the victim was physicallyhelpless when defendant attempted to subject her to sexual contact (see People vTeicher, 52 NY2d at 646; People vThomas, 21 AD3d 643, 645 [2005], lv denied 6 NY3d 759 [2005]; People vHimmel, 252 AD2d 273, 276 [1999], lv denied 93 NY2d 899 [1999]; see alsoPeople v Ferrer, 250 AD2d 860, 861 [1998], lvs denied 92 NY2d 879 [1998], 93NY2d 852 [1999]).[*3]
We next turn to defendant's contention that hisconvictions were against the weight of the evidence. At trial, defendant testified that he nevertouched the victim on the breasts, thighs or in any other inappropriate manner. He also profferedthe testimony of several bar patrons and the bouncer working that night, all of whom stated thatthey did not observe defendant inappropriately touch the victim or try to pull her into the backroom, although many of these witnesses conceded that they were not paying much attention. Oneof the bartenders working that evening testified that she originally discovered the victim alone inthe storage room opening a cooler and that after she alerted defendant to the victim's presence,he entered the storage room and told the victim that she had to leave. Defendant stated that hewas never alone in the storage room with the victim and both he and this bartender testified as tohis unsuccessful attempts to remove the victim from the room.
Since a different verdict would not have been unreasonable in light of this testimony, wemust "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 490, 495 [1987] [internal quotation marks and citations omitted]; see People v Danielson, 9 NY3d342, 348 [2007]; People v Baker, 58 AD3d 1069, 1071 [2009], lv granted 12NY3d 851 [2009]). Contrary to the testimony proffered by the defense, the victim explained howshe was forcibly pulled by defendant into the storage room against her will, which act waswitnessed and testified to by both King and Martin. The victim also testified that she wanted toleave the storage room, repeatedly told defendant of her desire to leave and kept trying to flee theroom, but was prevented from doing so because defendant was holding her arm. Faced withthese conflicting accounts of what transpired, the jury chose to credit the People's witnesses and,on the record before us, we find no reason to reject the jury's decision in this regard given itsunique ability to view the witnesses, observe demeanor and hear the testimony (see People v Diotte, 63 AD3d1281, 1283 [2009]; People vNealon, 36 AD3d 1076, 1078 [2007], lv denied 8 NY3d 988 [2007]). Whiledefendant points out that the victim, King and Martin had consumed alcohol throughout theevening and that certain portions of their testimony were inconsistent with their prior statementsabout the incident, as well as each other's testimony, both their level of inebriation as well as theinconsistencies in their testimony were thoroughly explored during trial and did not render theirtestimony "so unworthy of belief as to be incredible as a matter of law" (People v Williams, 46 AD3d1024, 1026 [2007] [internal quotation marks and citations omitted]; see People v Hayden, 60 AD3d1155, 1157 [2009], lv denied 12 NY3d 854 [2009]; People v Littebrant, 55 AD3d1151, 1155 [2008], lv denied 12 NY3d 818 [2009]; People v Morey, 304AD2d 855, 856 [2003], lv denied 100 NY2d 564 [2003]). Viewing the evidenceregarding both incidents in a neutral light and according deference to the jury's credibilitydeterminations (see People vRomero, 7 NY3d 633, 644 [2006]; People v Collins, 56 AD3d at 810), we findthat defendant's convictions were not against the weight of the evidence.
Defendant also challenges the adequacy of County Court's investigation into two allegationsof juror misconduct. It is well settled that a sworn juror must be dismissed if found to be "grosslyunqualified to serve" (CPL 270.35 [1]), which occurs "only when it becomes obvious that aparticular juror possesses a state of mind which would prevent the rendering of an impartialverdict" (People v Buford, 69 NY2d 290, 298 [1987] [internal quotation marks andcitation omitted]; see People v Rodriguez, 71 NY2d 214, 219 [1988]; People v Lapage, 57 AD3d 1233,1235 [2008]). In investigating allegations of juror misconduct, the trial court must conduct a"probing, tactful inquiry" into the specific circumstances (People v Bradford, 300 AD2d685, 688 [2002], lv denied 99 NY2d 612 [2003]; see People v Cargill, 70 NY2d687, 688 [1987]; People v Bailey, 258 AD2d 807, 808 [1999], lv denied 93NY2d 1001 [1999]) and, so long as [*4]that inquiry has occurred,the court's determination will be accorded latitude and great deference upon review (seePeople v Littebrant, 55 AD3d at 1154; People v Bradford, 300 AD2d at 688;People v Leader, 285 AD2d 823, 824 [2001], lv denied 97 NY2d 756 [2002]).
During jury deliberations, defense counsel informed the court that he had learned that jurorNo. 54 harbored an intention to convict defendant regardless of the evidence. In response to thisallegation, County Court conducted an extensive inquiry into the matter, in which defensecounsel participated, by questioning juror No. 54's spouse and other individuals under oath.Contrary to defendant's assertions, County Court's inquiry into the matter was sufficient so as tosatisfy it that juror No. 54 was not grossly unqualified to serve (see People v Buford, 69NY2d at 299-300; People v Wallace, 293 AD2d 872, 873-874 [2002]). To the extent thatdefendant now argues that the inquiry was inadequate because the court failed to question jurorNo. 54 regarding the matter, this issue is unpreserved inasmuch as he neither informed the courtthat its questioning was insufficient nor requested that juror No. 54 be questioned (see People v Hicks, 6 NY3d 737,739 [2005]; People v Kelly, 65AD3d 714, 715 [2009]; see also CPL 470.05 [2]).
Turning to the second instance of alleged juror misconduct, also raised during jurydeliberations, defense counsel claimed to have received information indicating that juror No. 80'shusband is a friend of both a County Judge in Franklin County and the Franklin County DistrictAttorney. Despite defendant's assertions to the contrary, this juror did not fail to truthfullyanswer any of County Court's questions during voir dire, since the court only asked whether anyof the prospective jurors "or anyone close to [them] work for a . . . DistrictAttorney's office." Moreover, it was not juror No. 80 herself, but only her husband, who wasalleged to be a friend of those individuals, neither of whom had any involvement withdefendant's trial. Without more, this type of mere "acquaintanceship . . . does notraise a legitimate issue as to whether she was grossly unqualified" (People v Garraway, 9 AD3d 506,507 [2004], lvs denied 3 NY3d 674, 740 [2004] [internal quotation marks and citationsomitted]). As such, we cannot conclude that County Court erred in determining that aBuford inquiry was unnecessary (see id.).
Finally, we have reviewed defendant's contention that he was deprived of the effectiveassistance of counsel and find it to be without merit. " 'The constitutional right to the effectiveassistance of counsel does not mean that the representation was error free in every respect, butsimply that defendant was afforded a fair trial' " (People v Jackson, 48 AD3d 891, 893 [2008], lv denied 10NY3d 841 [2008], quoting People vDamphier, 13 AD3d 663, 664 [2004]; see People v Fuller, 50 AD3d 1171, 1176 [2008], lv denied11 NY3d 788 [2008]). Our review of the record indicates that counsel pursued an appropriateomnibus motion on defendant's behalf, offered a reasonable theory of defense which heconsistently pursued throughout the trial, made appropriate objections, presented numerousdefense witnesses, pointed out inconsistencies in the testimony of the People's witnesses, andvigorously argued for dismissal of the charges. His assertion that counsel should have moreeffectively cross-examined and impeached the People's witnesses amounts to no more than ahindsight disagreement with trial tactics, which does not rise to the level of ineffectiveness (see People v Hamms, 55 AD3d1142, 1145 [2008], lv denied 11 NY3d 925 [2009]; People v Page, 225AD2d 831, 834 [1996], lv denied 88 NY2d 883 [1996]). While we agree that counselshould have pursued an alleged discrepancy in the time stamps of the various surveillancecameras, this single failing was not "sufficiently egregious and prejudicial" so as to compromisedefendant's right to a fair trial (People vCaban, 5 NY3d 143, 152 [2005]; see People v Turner, 5 NY3d 476, 480 [2005]; People v Prue, 26 AD3d 671,671-672 [2006], lv denied 7 NY3d 816 [2006]). When viewed in totality and at the timeof the representation, counsel's performance was meaningful (see People v [*5]Baldi, 54 NY2d 137, 147 [1981]; People v Jackson, 48AD3d at 894).
Cardona, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Prior to submission to the jury,the People conceded that the forcible touching count was a lesser included offense of theattempted sexual abuse count. Thus, by virtue of the guilty verdict on the attempted sexual abusecount, the charge of forcible touching was dismissed (see CPL 300.40 [3] [b]).