| People v Felipe |
| 2010 NY Slip Op 09413 [79 AD3d 1454] |
| December 23, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bernabe S. Felipe,Also Known as Bernabe Fel F. Silvestre, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered June 1, 2009, upon a verdict convicting defendant of the crimes of attempted rape in the firstdegree, sexual abuse in the first degree, assault in the second degree and sexually motivated felony.
Defendant met the victim at a bar in the City of Saratoga Springs, Saratoga County, and left withher when she went to catch an early morning bus. The victim fell and sprained her ankle, missing herbus. She then went with defendant, who was assisting her, to what she thought was his residence.When they arrived at horse stalls instead, the victim became uncomfortable and used her cell phone tocall a friend. The victim testified that after she terminated the call, defendant came up behind her,grabbed the phone out of her hand, covered her nose and mouth and dragged her through a fenced-inarea and into a bathroom by the horse stalls. Defendant threw her to the ground, ripped her pants off,punched her in the face and ribs, and attempted to rape her. When defendant could not get an erection,he penetrated the victim's vagina and anus with his hand, continued to punch her, and bit her on thebreast, face and lips. Eventually, the victim was able to free herself, struggle with defendant and scream,causing defendant to flee. The victim then ran into the street and obtained assistance in contactingpolice.[*2]
After defendant confessed to assaulting the victim andattempting to rape her, he was charged in an indictment with various crimes. Following a jury trial,defendant was convicted of attempted rape in the first degree, sexual abuse in the first degree, assault inthe second degree and sexually motivated felony, and sentenced to an aggregate prison term of 20years with 15 years of postrelease supervision. Defendant appeals, arguing that the People presentedinsufficient evidence that the victim suffered a serious physical injury, requiring reversal of hisconvictions for assault in the second degree and sexually motivated felony. We agree.
Serious physical injury is defined as "physical injury which creates a substantial risk of death, orwhich causes death or serious and protracted disfigurement, protracted impairment of health orprotracted loss or impairment of the function of any bodily organ" (Penal Law § 10.00 [10]), andis an element of assault in the second degree as charged herein (see Penal Law § 120.05[1]). The record reveals that the victim was conscious and communicative when she arrived at thehospital after the attack, with normal vital signs and neurological state, despite extensive bruising,lacerations and pain. Radiological scans revealed no internal bleeding or bone fractures. Furthermore,while the victim was admitted to the hospital for several days, was prescribed pain medication upondischarge and testified that she missed a month of work, no medical evidence was presented to showthat her absence from work was necessary. Rather, her discharge summary from the hospital indicatedthat remaining lacerations were expected to heal on their own without surgical intervention, her bruiseswere fading, and her continued pain was both occasional and tolerable with medication. In any event,there was no evidence that the victim suffered from any continuing pain or unresolved symptomsbeyond one month after her injury.
Even viewing this evidence in the light most favorable to the People, we conclude that no "rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt"(People v Contes, 60 NY2d 620, 621 [1983] [internal quotation marks and citationsomitted]). That is, given the absence of evidence that the victim's injuries created a substantial risk ofdeath or caused serious and protracted disfigurement or protracted impairment of health or function ofa bodily organ, the evidence was insufficient to establish the serious physical injury element of assault inthe second degree (see People v Pittman,33 AD3d 1118, 1119-1120 [2006]; People v Gray, 30 AD3d 771, 772-773 [2006], lv denied 7NY3d 848 [2006]; People v Sleasman,24 AD3d 1041, 1042-1043 [2005]; People v Phillip, 279 AD2d 802, 803 [2001], lvdenied 96 NY2d 905 [2001]; cf. People v Kern, 75 NY2d 638, 658 [1990], certdenied 498 US 824 [1990]; People vCasey, 61 AD3d 1011, 1013 [2009], lv denied 12 NY3d 913 [2009]; People v Coy, 45 AD3d 1050, 1051[2007]). Under the circumstances herein and based upon the record before us, we therefore reducedefendant's conviction of assault in the second degree to assault in the third degree, a misdemeanor(see Penal Law § 120.00 [1]; § 10.00 [9]; People v Sleasman, 24 AD3dat 1043; cf. People v Ham, 67 AD3d1038, 1038-1040 [2009]; People v West, 271 AD2d 806, 808 [2000], lvdenied 95 NY2d 893 [2000]). Inasmuch as assault in the second degree formed the basis fordefendant's sexually motivated felony conviction, that count must be dismissed (see Penal Law§ 130.91).[FN*][*3]
Finally, we agree with defendant that County Court erred inimposing consecutive sentences on his attempted rape and sexual abuse convictions. Sentences may notrun consecutively "(1) where a single act constitutes two offenses, or (2) where a single act constitutesone of the offenses and a material element of the other," and it is the People's burden to establishlegality (People v Laureano, 87 NY2d 640, 643 [1996]; accord People v Taveras, 12 NY3d 21, 25 [2009]). While the victim'stestimony at trial revealed multiple discrete acts of sexual contact, both the indictment and the court'sinstructions to the jury indicated only that defendant was charged with subjecting the victim to sexualcontact by forcible compulsion. Because the jury may have convicted defendant of sexual abuse in thefirst degree based upon the same act that constituted attempted rape in the first degree, concurrentsentences are required (see People vAlford, 14 NY3d 846, 847-848 [2010]; People v Parks, 95 NY2d 811, 814-815[2000]; People v Amato, 1 AD3d713, 716-717 [2003], lv denied 1 NY3d 594 [2004]; People v Jeanty, 268AD2d 675, 680 [2000], lv denied 94 NY2d 945 [2000]; People v Ortiz, 250 AD2d626, 627-628 [1998], lv denied 92 NY2d 858 [1998]; People v Radcliffe, 185AD2d 662, 663 [1992], lv denied 80 NY2d 976 [1992]; cf. People v Frederick, 14 NY3d 913, 917 [2010]).
Defendant's remaining argument has been considered and found to be lacking in merit.
Peters, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is modified, on thelaw, by (1) reducing defendant's conviction of assault in the second degree under count three of theindictment to assault in the third degree, (2) reversing defendant's conviction of sexually motivatedfelony under count four of the indictment and dismissing said count, (3) directing that defendant'ssentences for the crimes of attempted rape in the first degree under count one of the indictment andsexual abuse in the first degree under count two of the indictment shall run concurrently rather thanconsecutively, and, as so modified, affirmed.
Footnote *: Defendant has been incarcerated formore than the one-year maximum allowed on the conviction of assault in the third degree, and CountyCourt imposed a concurrent sentence of 15 years for attempted rape in the first degree. Thus, remittalfor resentencing is not necessary (see Peoplev Robertson, 53 AD3d 791, 793 n [2008], lv denied 11 NY3d 857 [2008]).