| People v Evans |
| 2010 NY Slip Op 08986 [79 AD3d 454] |
| December 7, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JohnEvans, Also Known as Stanley Emerson, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Hannah E.C. Moore of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Michael Sonberg, J.), rendered May 21, 2008, asamended May 28, 2008, convicting defendant, after a jury trial, of rape in the third degree, andsentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
Defendant, who was indicted for numerous crimes including forcible rape, was only convictedunder a count of the indictment charging third-degree rape pursuant to Penal Law § 130.25 (3).As part of the Sexual Assault Reform Act (L 2000, ch 1), the Legislature established a theory of rapein which the victim's "lack of consent is by reason of some factor other than incapacity to consent."Lack of consent for purposes of this crime occurs where "the victim clearly expressed that he or she didnot consent to engage in such act, and a reasonable person in the actor's situation would haveunderstood such person's words and acts as an expression of lack of consent to such act under all thecircumstances" (Penal Law § 130.05 [2] [d]).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence.The jury's mixed verdict does not warrant a different conclusion (see People v Rayam, 94NY2d 557 [2000]). The victim testified that she repeatedly told defendant that she wanted to leave andthat she was "crying the whole time." Thus, her words and actions clearly expressed an unwillingness toengage in the sexual act in such a way that a neutral observer would have understood that she was notconsenting (People v Newton, 8 NY3d460, 463-464 [2007]), particularly when viewed in light of defendant's own actions throughout thisencounter, which began when defendant forced her to his apartment. Viewed in context, the victim'srequests to leave were clear expressions of unwillingness to engage in sexual activity.
Third-degree rape under Penal Law § 130.25 (3) also has several unusual proceduralaspects, contained in CPL 300.50 (6). That statute specifically provides that this type of third-degreerape is not a lesser included offense of any other crime, including first-degree rape. However, "suchoffense may be submitted as a lesser included offense of the applicable first degree offense when (i)there is a reasonable view of the evidence which would support a finding that the defendant committedsuch lesser offense but did not commit the greater offense, and (ii) both parties consent to itssubmission" (CPL 300.50 [6]).
At trial, defendant opposed submission of the third-degree rape count on which he was [*2]convicted (as well as other third-degree counts of which he wasacquitted), but only on the ground that the evidence did not support the third-degree counts. Therefore,he did not preserve his present claim that even though it was a separate, preexisting count of theindictment, the court was still obligated to obtain his consent before submitting the third-degree count ofwhich he was convicted, and we decline to review this claim in the interest of justice. As an alternativeholding, we also reject it on the merits. The court did not submit the third-degree count as a lesserincluded offense of the first-degree count, but as a separate count of the indictment, a situation notaddressed by CPL 300.50 (6). Furthermore, this separate count was not a lesser included offense ofthe first-degree rape count, but was instead a noninclusory concurrent count (see People v Leon, 7 NY3d 109,112-113 [2006]). As noted, the statute expressly declares that this type of third-degree rape is not alesser included offense of forcible rape. Moreover, even without this legislative declaration, we note thatalthough forcible compulsion generally implies that the victim did not consent, a person could commitforcible first-degree rape without necessarily committing the particular type of third-degree rapecriminalized under Penal Law § 130.05 (2) (d) and § 130.25 (3). For example, a personmight demand sexual intercourse while making a death threat, causing the terrified victim to submitimmediately, without ever doing or saying anything to express lack of consent, as required byPenal Law § 130.05 (2) (d).
Although the court, prior to summations, indicated that it would not allow defense counsel to arguethat the victim had consented, counsel ultimately was able to make this point by repeatedly telling thejury that the victim was not telling the whole story, that the defendant's actions were inconsistent withthose of a rapist, and that the victim was not forced to do anything. Thus, any error in the court'spre-summation ruling was harmless. Since defendant did not argue that he was constitutionally entitledto make the proposed argument, he did not preserve his constitutional claims (see People vAngelo, 88 NY2d 217 [1996]), and we decline to review his claims in the interest of justice. As analternative holding, we also reject those claims on the merits, and find the alleged error to be harmless inany event. Concur—Mazzarelli, J.P., Acosta, Richter, Abdus-Salaam and RomÁn, JJ.