| People v Fulwood |
| 2011 NY Slip Op 05995 [86 AD3d 809] |
| July 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brian M.Fulwood, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Jeremy V. Murray of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered March 2, 2010, upon a verdict convicting defendant of the crimes of criminal sexual actin the first degree and sexual abuse in the first degree.
While walking home from a local adult entertainment club, defendant and his then girlfriend(hereinafter the victim) became embroiled in a verbal altercation that eventually escalated to asexual assault, during the course of which defendant, among other things, forced the victim toperform oral sex and threatened her with a knife. As a result, defendant was indicted and chargedwith criminal sexual act in the first degree and sexual abuse in the first degree. Following a jurytrial, defendant was convicted as charged and sentenced to a prison term of 12 years followed by20 years of postrelease supervision upon his conviction of criminal sexual act in the first degree,together with a prison term of seven years followed by 10 years of postrelease supervision uponhis conviction of sexual abuse in the first degree, said sentences to be served concurrently. Thisappeal by defendant ensued.
We affirm. Defendant initially contends that the warrantless search of his residence violatedhis 4th Amendment rights and, therefore, any evidence seized therefrom should have beensuppressed. As to the legality of the search, defendant did not request a Mapp hearing or[*2]otherwise raise this issue in his omnibus motion and,therefore, he has failed to preserve this claim for our review (see People v Simmons, 20 AD3d 813, 814 [2005], lvdenied 6 NY3d 758 [2005]; People v Williams, 306 AD2d 763, 764 [2003], lvdenied 100 NY2d 625 [2003]; People v Smith, 266 AD2d 639, 641 [1999], lvdenied 94 NY2d 907 [2000]; People v Raymond, 187 AD2d 463, 463-464 [1992],lv denied 81 NY2d 793 [1993]). We reach a similar conclusion regarding the physicalevidence seized from the residence, as defendant raised no objection to the admission of thechallenged photographs at trial, and his sole objection regarding the admissibility of the knifewas based upon an alleged break in the chain of custody (see CPL 470.05 [2]; see also People v Peele, 73 AD3d1219, 1221 [2010], lv denied 15 NY3d 894 [2010]; People v Stearns, 72 AD3d 1214,1218 [2010], lv denied 15 NY3d 778 [2010]; People v Brown, 249 AD2d 835,837 [1998]).
Defendant next asserts that the verdict is against the weight of theevidence—particularly with respect to the element of forcible compulsion (seePenal Law § 130.00 [8]; § 130.50 [1]). We do not agree. As relevant here, forciblecompulsion means to compel by either the use of physical force or "a threat, express or implied,which places a person in fear of immediate death or physical injury to himself, herself oranother" (Penal Law § 130.00 [8] [b]; see People v Porter, 82 AD3d 1412, 1413 [2011]). The focus isupon the victim's subjective state of mind, i.e., what the victim feared the defendant might havedone had he or she not complied (see People v Porter, 82 AD3d at 1413; People v Maggio, 70 AD3d 1258,1258 [2010], lv denied 14 NY3d 889 [2010]; People v Jenkins, 282 AD2d 926,928 [2001], lv denied 96 NY2d 903 [2001]), giving due consideration to, among otherthings, the nature of the relationship between the defendant and the victim (see People vPorter, 82 AD3d at 1413; People v Maggio, 70 AD3d at 1258-1259; People v Littebrant, 55 AD3d1151, 1156 [2008], lv denied 12 NY3d 818 [2009]), including any evidence of thedefendant's prior abusive behavior toward the victim (see People v Littebrant, 55 AD3dat 1156; People v Black, 304 AD2d 905, 908 [2003], lv denied 100 NY2d 578[2003]; see also People v Fleegle,20 AD3d 684, 687 [2005], lv denied 5 NY3d 828 [2005], cert denied 547 US1152 [2006]).
Here, the victim testified that, in addition to holding a knife to her throat, choking her to thepoint of vomiting and threatening to kill her, defendant slapped her across the face, grabbed andpulled her by her hair, picked her up and dropped her on the floor, pushed her over a couch andshoved his fingers into her anus, slammed her against a door and inserted his hand into hervagina with sufficient force to lift her up off the floor, thrust his fist into her vagina and made herperform oral sex by holding her head down to the point that she gagged. The victim furthertestified that defendant had hit her in the past and that when, during the course of the sexualassault, defendant raised the knife above his head, she cowered and covered her face, believingthat he was about to stab her. Such proof, in our view, is more than sufficient to establish theelement of forcible compulsion (see People v Porter, 82 AD3d at 1414; People vMaggio, 70 AD3d at 1259; People v Littebrant, 55 AD3d at 1155-1156; People vJenkins, 282 AD2d at 928). Thus, based upon our independent review of the evidence(see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Diotte, 63 AD3d 1281, 1283 [2009]) and giving duedeference to the jury's credibility determinations (see People v Reynolds, 81 AD3d 1166, 1167 [2011], lvdenied 16 NY3d 898 [2011]; Peoplev Newkirk, 75 AD3d 853, 856 [2010], lv denied 16 NY3d 834 [2011]), we findthat the verdict is not against the weight of the evidence.
Nor are we persuaded that defendant was denied the effective assistance of counsel. "Theconstitutional right to the effective assistance of counsel does not mean that the representationwas error free in every respect, but simply that defendant was afforded a fair trial" (People v Jackson, 48 AD3d 891,893 [2008], lv denied 10 NY3d 841 [2008] [internal quotation marks and citationsomitted]; see People v Washington,21 AD3d 648, 650 [2005], lv denied 6 NY3d 839 [2006]). Although defendantcomplains that counsel failed to object to the admission of the victim's 911 tape or contestCounty Court's charge to the jury, he has not articulated any legitimate legal basis for objection(see People v Cioto, 80 AD3d875, 876 [2011], lv denied 16 NY3d 829 [2011]), and counsel's failure to eithermake a particular pretrial motion (see People v Jackson, 48 AD3d at 893; People v Miller, 11 AD3d 729,730 [2004]) or request that County Court charge certain lesser included offenses (see Peoplev Washington, 21 AD3d at 651) does not, standing alone, constitute ineffective assistance ofcounsel. Inasmuch as counsel otherwise engaged in appropriate motion practice, cross-examinedthe People's witnesses at both the suppression hearing and trial, made appropriate objections,presented a reasonable—albeit ultimately unsuccessful—defense and gave coherentopening and closing statements, we are satisfied that defendant received meaningfulrepresentation (see People vRichards, 78 AD3d 1221, 1225 [2010], lv denied 15 NY3d 955 [2010]; People v Major, 68 AD3d 1244,1246 [2009], lv denied 14 NY3d 772 [2010]; People v Casey, 61 AD3d 1011, 1014 [2009], lv denied 12NY3d 913 [2009]).
Defendant's remaining contentions do not warrant extended discussion. "The failure torequest submission of a lesser included charge to the jury precludes appellate review, unless suchfailure deprived defendant of a fair trial" (People v Clark, 115 AD2d 860, 862 [1985],lv denied 67 NY2d 941 [1986] [citations omitted]). No such showing has been made here(see id. at 862). Finally, absent an abuse of discretion or extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice, a sentence that falls within thepermissible statutory range will not be set aside (see People v Appleby, 79 AD3d 1533, 1534 [2010]; People v Brown, 46 AD3d 949,952 [2007], lv denied 10 NY3d 808 [2008]). Notwithstanding defendant's assertedmental health and substance abuse issues, these factors do not mitigate the violent nature ofdefendant's crimes against the victim (see People v Masters, 36 AD3d 959, 960-961 [2007], lvdenied 8 NY3d 925 [2007]). Accordingly, we discern no basis upon which to disturb thesentence imposed. Any remaining issues, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Rose, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.