| People v Davis |
| 2010 NY Slip Op 02994 [72 AD3d 1274] |
| April 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kareem A.Davis, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Torrance L. Schmitz of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered February 15, 2008, upon a verdict convicting defendant of the crime of rape in thesecond degree.
In December 2006, defendant, who was then 26 years old, engaged in sexual relations withthe victim (born in 1992). Several weeks later, the victim informed other adults, including herfather, of the rape, and her father took her to the police department to report it. Defendantthereafter gave a statement to the police, admitting to having had sexual relations with thevictim. However, he denied the use of forcible compulsion and alleged that the victim hadinformed him that she was 18 years old. Defendant was subsequently indicted on one count eachof rape in the first degree and rape in the second degree.
County Court conducted a combined Huntley/Sandoval hearing and determined thatdefendant's confession was voluntarily made. In addition, the court issued a ruling detailing aSandoval compromise in which the fact, but not the underlying circumstances, ofdefendant's prior conviction for criminal mischief in the fourth degree would be admissible onthe People's cross-examination in the event that defendant testified. After a jury trial, defendantwas acquitted of the charge of rape in the first degree, but was found guilty of rape in the seconddegree and was later sentenced to a prison term of 2 to 6 years. Defendant now appeals and we[*2]affirm.
Initially, we note that defendant's assertion on appeal that his confession was renderedinvoluntary and should have been suppressed as the result of an unlawful warrantless arrest wasnot preserved, as this specific challenge was not made to County Court (see People vJacquin, 71 NY2d 825, 826-827 [1988]; People v Durrin, 32 AD3d 665, 666 [2006]). We also conclude thatany error occasioned by County Court's Sandoval compromise was harmless in light ofthe overwhelming evidence of defendant's guilt (see People v Grant, 7 NY3d 421, 424 [2006]).
Defendant next contends that the verdict was against the weight of the evidence. Wedisagree. To support a conviction of rape in the second degree, the People were required todemonstrate that defendant, "being [18] years old or more, . . . engage[d] in sexualintercourse with another person less than [15] years old" (Penal Law § 130.30 [1]). In hissworn statement to the police—which he never repudiated—defendant admittedhaving sexual intercourse with the victim. In addition, a police department investigator testifiedthat defendant told him that he was born in February 1980. Such fact was confirmed byinformation provided by defendant and set forth on documents signed by defendant and admittedinto evidence. The victim testified that she was born in January 1992 and, although the versionof events set forth in defendant's statement differed in some respects from her account of therape, defendant's statement clearly corroborated the victim's allegation that defendant had sexualintercourse with her. The jury, as the final arbiter of credibility, clearly accepted the victim'stestimony in this regard. Even if a different finding would not have been unreasonable, viewingthe evidence in a neutral light, " 'weigh[ing] the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony' "(People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken vMiller, 291 NY 55, 62 [1943]; seePeople v Danielson, 9 NY3d 342, 348 [2007]) and giving "appropriate deference to thejury's superior opportunity to assess the witnesses' credibility" (People v Gilliam, 36 AD3d 1151,1152-1153 [2007], lv denied 8 NY3d 946 [2007]), we conclude that the verdict wassupported by the weight of the evidence.
We also reject defendant's contention that he was deprived of the effective assistance ofcounsel. The various claimed errors made by counsel are either belied by the record or defendanthas failed to " 'demonstrate the absence of strategic or other legitimate explanations' for counsel'sallegedly deficient conduct" (People vCaban, 5 NY3d 143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709[1988]). In particular, we note that, in view of defendant's voluntary confession, memorialized ona DVD and in a written statement, trial counsel clearly elected to focus his efforts—whichwere ultimately successful—on disproving the element of forcible compulsion underlyingthe more serious charge of rape in the first degree, while essentially conceding the second degreerape charge. In our view, the "totality of the circumstances" (People v Anderson, 38 AD3d 1061, 1063 [2007], lv denied8 NY3d 981 [2007]) demonstrate that defendant received meaningful representation withinconstitutional requirements (see Peoplev Kalteux, 2 AD3d 967, 968 [2003]; People v Van Gorden, 307 AD2d 547,547-548 [2003], lv denied 1 NY3d 581 [2003]).
Nor do we find merit to defendant's argument that his sentence was harsh and excessive (see People v Sidbury, 24 AD3d880, 881-882 [2005], lv denied 6 NY3d 818 [2006]) as we discern no abuse ofdiscretion or extraordinary circumstances that would warrant a reduction of the sentence in theinterest of justice (see People vMiles, 61 AD3d 1118, 1120 [2009], lv denied 12 NY3d 918 [2009]; People v Kennard, 60 AD3d 1096,1097 [2009], lv denied 12 NY3d 926 [*3][2009]).
Cardona, P.J., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment isaffirmed.