| People v Patterelli |
| 2009 NY Slip Op 08895 [68 AD3d 1151] |
| December 3, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kipp J.Patterelli, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Kevin A. Jones of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered March 15, 2008, upon a verdict convicting defendant of the crimes of criminal sexualact in the first degree (three counts), rape in the first degree, sexual abuse in the first degree (twocounts) and unlawful imprisonment in the second degree.
Defendant allegedly arrived at the victim's apartment in the early morning hours seekingdrugs. The two were acquainted since defendant was the brother of the victim's ex-boyfriend.The victim, an admitted cocaine user, told defendant that she might be able to get drugs at theplace she worked as an exotic dancer. Their efforts to procure drugs were unsuccessful and, uponreturning to the victim's apartment, defendant entered uninvited.
Over the course of the next several hours, defendant, among other things, allegedly fondledthe victim, forced her to perform oral sex upon him and forcibly engaged in sexual intercoursewith her. According to the victim, when she initially attempted to stop his conduct or cry out sothat a neighbor would hear, defendant choked her and threatened to kill her. She reported theincident to police later the same day and defendant was eventually charged in a seven-countindictment with three counts of criminal sexual act in the first degree, rape in the first degree,two counts of sexual abuse in the first degree and unlawful imprisonment in the second degree.His defense focused on the contention that the sex was entirely consensual. The [*2]jury found him guilty on all seven counts and he was sentenced toan aggregate prison term of 49 years plus five years of postrelease supervision. Defendantappeals.
Defendant initially argues that the verdict was against the weight of the evidence. Aconclusion different than the one reached by the jury would not have been unreasonable basedon the evidence at trial and, thus, we must, "like the trier of fact below, 'weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987],quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Romero, 7 NY3d633, 643 [2006]). The victim gave detailed testimony establishing the elements of the crime,including that she did not consent. Defendant points to, among other things, the victim's mentalhealth history and inconsistencies in some details of her story as grounds for rejecting key partsof her testimony. These factors, however, created credibility issues for the jury under thecircumstances of this case (see People vBlair, 32 AD3d 613, 614 [2006]; People v Tirado, 19 AD3d 712, 713-714 [2005], lv denied5 NY3d 810 [2005]; People vNickel, 14 AD3d 869, 871 [2005], lv denied 4 NY3d 834 [2005]). Uponreviewing the record and weighing the evidence, we are unpersuaded that the verdict was againstthe weight of the evidence.
There is, however, merit to defendant's contention that the People improperly elicitedtestimony during their case-in-chief regarding defendant's invocation of his right to remainsilent. "[T]he People may not use a defendant's silence against him or her on their direct case"(People v Stewart, 20 AD3d769, 770 [2005]; see People v Conyers, 49 NY2d 174, 177 [1980], vacated onother grounds 449 US 809 [1980], adhered to on remand 52 NY2d 454 [1981])."This rule applies equally to situations in which a defendant responds to questioning but declinesto answer certain questions or desires to halt questioning" (People v Hunt, 18 AD3d 891, 892 [2005] [citation omitted];see People v Sprague, 267 AD2d 875, 879-880 [1999], lv denied 94 NY2d 925[2000]).
At a pretrial hearing, police officer Jason A. Newcomb testified about a prearrest,Mirandized interrogation of defendant. Newcomb's report of the relevant dialogue included:
"Q: She's claiming you came to her apartment this morning and something happened?
"A: Nothing happened, what did she say? I thought it was about leaving the county or tryingto get drugs.
"Q: She claims you made her do some things, if she and you both consented I don't see aproblem.
"A: I knew I made a mistake having contact with her, you don't understand I'm a registeredoffender and was in jail for seven years then went back for a year, I don't want to discussanything with or about her until I speak to an attorney, I can't" (emphasis added).
During later conferences, defendant's first attorney and the prosecutor agreed that the lastpart of defendant's statement (i.e., "until I speak to an attorney, I can't") should be redacted toavoid improperly injecting into the trial his invocation of his right to counsel. Prior to openingstatements at trial, defendant's second attorney requested that additional language from [*3]defendant's statement to Newcomb (i.e., "I don't want to discussanything with or about [the victim]") not be permitted since it potentially implicated his right toremain silent. Over defendant's objection, the request was denied.
Thereafter, during the People's case, the prosecutor's questions on direct examinationresulted in Newcomb referring three times to defendant's statement about not wanting tocontinue talking to him, including this response: "And I told him that [the victim] was makingsome allegations that something had happened at her place. And he at that point said that heknew he had made a mistake having contact with her and initially thought that this was overdrugs. And then he indicated that he wished not to speak with me any further about the matter."
Later, on redirect examination, Newcomb testified:
"Q: What did [defendant] say to you with regard to [the victim] and the contact with her?
"A: He said that he did see her that morning . . . He also indicated that he hadmade a mistake by having contact with her . . . and that he did not want to sayanything more about her."
Finally, during the People's summation, the prosecutor argued to the jury as follows: "[Thevictim's] testimony is corroborated by the statement that [defendant] made to [Newcomb]. Imean, after all, I mean, he says all kinds of things. Yeah, I saw her this morning, but she wasgoing with a guy named Brian to Syracuse to get drugs. And then when [defendant] was thinkingabout it with [Newcomb], he said, you know what? I made a mistake of being around that girl,and I don't want to talk to you about it anymore. Again what does the evidence and yourcommon sense tell you?" (Emphasis added.)
It is apparent from these portions of the record that the People attempted to use defendant'sinvocation of his right to remain silent as a basis for the jury to draw an inference of guilt. Thiswas error (see e.g. People vGoldston, 6 AD3d 736, 737-738 [2004]). Any effort to characterize Newcomb'stestimony as merely an innocuous comment describing the termination of questioning isunavailing in light of the prosecutor's efforts to exploit defendant's silence in summation (seePeople v Nolan, 152 Ill App 3d 260, 266-267, 504 NE2d 205, 209-210 [1987]).[FN*]
The error cannot be characterized as harmless. No curative instruction was given to the [*4]jury and the evidence of defendant's guilt was not overwhelming."[W]e are unable to conclude that there is no reasonable possibility that the evidence regardingdefendant's invocation of his rights contributed to his conviction" (People v Murphy, 51 AD3d 1057,1058 [2008], lv denied 11 NY3d 792 [2008]; see People v Knowles, 42 AD3d 662, 665 [2007]; People vStewart, 20 AD3d at 770-771). The judgment must thus be reversed and a new trial held.The remaining argument is academic.
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Cortland County for a new trial.
Footnote *: Indeed, even on appeal, thePeople continue to urge in their brief that an inference should be drawn from defendant's silence,arguing: "[W]hen the questioning turned to what happened at [the victim's] residence,[defendant's] pretrial silence is inconsistent with [his] trial defense that he had consensual sexwith [the victim]."