| People v Porter |
| 2011 NY Slip Op 01900 [82 AD3d 1412] |
| March 17, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Trevor B.Porter, Appellant. |
—[*1]
Spain, J. Appeal from a judgment of the County Court of Tompkins County (Rowley, J.),rendered November 7, 2008, upon a verdict convicting defendant of the crimes of criminal sexualact in the first degree, criminal sexual act in the third degree and sexual abuse in the first degree.
Late one night in October 2007, after spending the earlier hours of the evening drinking,defendant and his friend Galvin Lawton knocked on the door of an apartment in the City ofIthaca, Tompkins County awakening Joezaya Berrios, a visitor at the premises who had beensleeping on the floor of the dining room area. Berrios—who was acquainted with themen—opened the door and, after the men entered without invitation, admonished them tobe quiet and then attempted to go back to sleep, approximately 10 feet from where the victim, thethen-15-year-old brother of one of the apartment's residents, was sleeping on a couch. Althoughneither Lawton nor defendant had ever met the victim before, Lawton roused the victim and,according to the victim, forced him to perform oral sex on both Lawton and defendant. At somepoint Lawton began engaging in anal intercourse with the victim, whereon the victim ran upstairsand reported to his brother that he was being abused by two strangers. Defendant was latercharged with—and convicted by a jury of—the crimes of criminal sexual act in thefirst degree, criminal sexual act in the third degree and sexual abuse in the first degree.Thereafter, defendant was [*2]sentenced as a second violentfelony offender to an aggregate prison term of 10 years with 10 years of postrelease supervision.Defendant now appeals.
Initially, there is no dispute that County Court erroneously charged the jury that sexual abusein the first degree is a lesser included offense of criminal sexual act in the first degree (see People v Gibson, 2 AD3d 969,972 [2003], lv denied 1 NY3d 627 [2004]). The crime of sexual abuse in the first degreerequires an element that is not an element of criminal sexual act in the first degree, specificallythat the sexual contact be "for the purpose of gratifying sexual desire of either" the victim or thedefendant (Penal Law § 130.00 [3]; see Penal Law §§ 130.50, 130.65;People v Wheeler, 67 NY2d 960, 962 [1986]). While a jury is permitted to infer sexualgratification from the circumstances of the contact and certainly could have in this case, given theevidence presented (see People vKing, 79 AD3d 1277, 1279 [2010]; People v Elwood, 62 AD3d 1046, 1047 [2009]), the court'serroneous instruction permitted the jury to find defendant guilty without ever considering thiselement. Under these circumstances, the error is not harmless. Accordingly, although defendantfailed to object to this fundamental error, we exercise our interest of justice jurisdiction andreverse his conviction of that count, vacate the sentence imposed thereon, and order a new trialon said count (see People v Rose,63 AD3d 1184, 1185 [2009]; People v Brown, 61 AD3d 1007, 1010 [2009]; see also People v Cordes, 71 AD3d912, 913 [2010]; People vArchie, 71 AD3d 686, 687-688 [2010], lv denied 14 NY3d 885 [2010]).
Defendant also asserts that his convictions of criminal sexual act in the first degree andsexual abuse in the first degree were not supported by legally sufficient evidence and wereagainst the weight of the evidence. Specifically, defendant alleges that the People failed to provethe element of compulsion for the alleged sexual acts (see Penal Law § 130.50 [1];§ 130.65 [1]). Due to the victim's age, he could not legally consent to the encounter(see Penal Law § 130.05 [3]), but to establish the first degree crimes of whichdefendant was convicted, the People had to present evidence of "forcible compulsion," whichmeans to compel either by the use of physical force—conceded by the People not to bepresent here—or by an implied or express threat "which places a person in fear ofimmediate death or physical injury to himself, herself or another" (Penal Law § 130.00[8]). The determination of whether such an implied threat existed involves a subjective inquiryinto what a victim feared a defendant might have done if he or she did not comply (see Peoplev Thompson, 72 NY2d 410, 415-416 [1988]; People v Clairmont, 75 AD3d 920, 921 [2010], lv denied15 NY3d 919 [2010]; People v Black, 304 AD2d 905, 908 [2003], lv denied 100NY2d 578 [2003]). The inquiry must consider "all 'relevant factors includ[ing] the age of thevictim, the relative size and strength of the defendant and victim, and the nature of thedefendant's relationship to the victim' " (People v Maggio, 70 AD3d 1258, 1258-1259 [2010], lvdenied 14 NY3d 889 [2010], quoting People v Sehn, 295 AD2d 749, 750 [2002],lv denied 98 NY2d 732 [2002]).
Here, the victim, who testified that he had only spent the night a couple of times previouslyat his brother's apartment, was sound asleep when awakened by the two adult strangers,demanding to know whether he was a boy or a girl. The victim was barely 15 years old and 5 feettall. The apartment was so dark that he could not see the men's faces. When the victim told themthat he was a boy, Lawton then asked, in crude terms, if he engaged in oral sex. The victim toldthe men, both in their mid-twenties, that he only performed oral sex on boys his own age. Thisversion of events was corroborated by the testimony of Berrios, who overheard part of theconversation.
Nevertheless, according to the victim, Lawton lifted him up from the couch by grabbing[*3]him under his arms and forced him to perform oral sex, firston Lawton and then on defendant. There is evidence that, at some point, Lawton removed thevictim's pants and then engaged in anal intercourse with the victim while the victim performedoral sex on defendant. At this point, the victim told Lawton to stop because it hurt and ranupstairs to waken his brother. The victim explained his compliance with the men's demands priorto that point, testifying, "I was afraid of what would happen if . . . there's two menover you, and they tell you to do something, and you don't know what's going to happen. I didwhat they told me to do. I was afraid of what would happen if I didn't. I was afraid I would gethit." Viewing this evidence in the light most favorable to the People (see People v Cabey,85 NY2d 417, 420 [1995]) and giving them the benefit of every favorable inference (seePeople v Bleakley, 69 NY2d 490, 495 [1987]), we find that they met their burden of settingforth evidence at trial sufficient to provide a valid line of reasoning and permissible inferences tosupport the jury's conclusion that the victim perceived an implied threat that he would bephysically harmed if he did not comply with the men's demands (see People v Thompson,72 NY2d at 417; People v Clairmont, 75 AD3d at 923; People v Maggio, 70AD3d at 1259-1260).
Furthermore, in examining all the credible evidence in a neutral light, we are satisfied that,while a different verdict would not have been unreasonable, the verdict is supported by theweight of the evidence (see People v Bleakley, 69 NY2d at 495; People v Davis, 21 AD3d 590,591-592 [2005]). The jury clearly discredited defendant's version of events where he, whileadmitting to being present at the apartment, claimed that he took no part in the sexual encounter.Instead, giving due deference to the jury's opportunity to view defendant and the victim and toassess their relative physical characteristics and credibility, the jury was entitled to credit thevictim's testimony and the corroborating testimony of Berrios, including the victim's assertionthat, even in the absence of verbal threats, he was too afraid to resist the advances of the twoadult strangers (see People v King, 79 AD3d at 1278-1279; People v Clairmont,75 AD3d at 921-922; People v Davis, 21 AD3d at 591-592; see also People v Dean, 70 AD3d1193, 1194-1195 [2010]) .
Defendant next contends, pro se, that as a result of intoxication, he did not possess therequisite intent for criminal liability. This contention is unpreserved. Were we to review theclaim, we would find it unavailing. An intoxication charge is not warranted where, as here,defendant has failed to present "sufficient evidence of intoxication in the record for a reasonableperson to entertain a doubt as to the element of intent on that basis" (People v Perry, 61NY2d 849, 850 [1984]; see People v Gaines, 83 NY2d 925, 927 [1994]). Defendanttestified that he had consumed beer throughout the night, but never testified to facts that wouldsupport the theory that his alcohol consumption that night had impacted his ability to form intent.
Defendant's pro se argument that County Court erred by amending the indictment to includethe alternative theory of acting in concert also is without merit. It is well settled that " '[a]nindictment charging a defendant as a principal is not unlawfully amended by the admission ofproof and instruction to the jury that a defendant is additionally charged with acting-in-concert tocommit the same crime' " (People vRobinson, 53 AD3d 681, 683-684 [2008], lv denied 11 NY3d 794 [2008],quoting People v Rivera, 84 NY2d 766, 769 [1995]; see CPL 200.70 [1]).
Finally, despite the litany of trial errors asserted by defendant, we hold that defendantreceived meaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]; People v Richards, 78 AD3d 1221,1224 [2010], lv denied 15 NY3d 955 [2010]). Several of the errors alleged by defendantimpact only his conviction of sexual abuse in the first degree and will not [*4]be addressed in light of the reversal of that conviction. As to otheralleged shortcomings, defendant failed to meet his burden of " 'demonstrat[ing] the absence ofstrategic or other legitimate explanations' [therefor]" (People v Baker, 14 NY3d 266, 270-271 [2010], quoting Peoplev Rivera, 71 NY2d 705, 709 [1988]). For example, although defendant asserts that counselshould have requested additional language clarifying the charge on accomplice liability, therecord reveals that counsel considered such a request, but determined that it would only highlightthe accomplice theory and possibly confuse the jury as to defendant's claim that he did notparticipate at all in the alleged sexual acts. Under these circumstances, we cannot say thatcounsel's decision not to pursue the charge was without any valid strategic reason.
We have reviewed the other defects in representation, as perceived by defendant, includingthe failure to timely register an objection to his appearance before the grand jury in prison garb,to object to certain testimony as hearsay, to object to the in-court identification of defendant bythe victim, to request a bill of particulars, to request a suppression hearing and to submit posttrialmemoranda of law and ascertain no prejudicial error. Indeed, we discern no single, norcumulative, error sufficient to deprive defendant of his right to the effective assistance of counsel(see People v Caban, 5 NY3d143, 152 [2005]; People v King, 79 AD3d at 1280).
Mercure, J.P., Peters, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment ismodified, as matter of discretion in the interest of justice, by reversing defendant's conviction ofsexual abuse in the first degree under count three of the indictment and vacating the sentenceimposed thereon; matter remitted to the County Court of Tompkins County for a new trial onsaid count; and, as so modified, affirmed.