| People v Frankline |
| 2011 NY Slip Op 06316 [87 AD3d 831] |
| August 19, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lennie D.Frankline, Appellant. |
—[*1] Lennie D. Frankline, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedJune 3, 2009. The judgment convicted defendant, upon a jury verdict, of kidnapping in the firstdegree (three counts), predatory sexual assault, criminal sexual act in the first degree (fourcounts), assault in the second degree, abortion in the second degree and aggravated harassment inthe second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,predatory sexual assault (Penal Law § 130.95 [1] [b]), three counts of kidnapping in thefirst degree (§ 135.25 [2] [a], [c]), and four counts of criminal sexual act in the first degree(§ 130.50 [1]), defendant contends that the verdict with respect to the kidnapping counts isagainst the weight of the evidence because the People failed to prove beyond a reasonable doubtthat he restrained the victim within the meaning of Penal Law § 135.00 (1). We reject thatcontention. The victim testified at trial that defendant, her ex-boyfriend, held her against her willin their apartment in excess of two days, and that he repeatedly hit and kicked her while her armsand legs were bound by wire. The victim further testified that defendant then poured gasoline onher and threatened to set her on fire if she did not have anal intercourse with him. She fled fromthe apartment to safety more than 48 hours later, when defendant left the apartment to obtainfood. Although there were periods during which the victim was not physically confined in theapartment, the jury could reasonably have determined that she was effectively restrained fromleaving due to her fear of defendant and his threats of using deadly physical force against her andothers if she attempted to leave (see § 135.00 [1], [2]; see generally People vLotmore, 276 AD2d 901, 902 [2000], lv denied 96 NY2d 736 [2001]). We note thatthe victim's testimony was amply corroborated by other evidence, including photographs of hervarious injuries, and that the jury was entitled to credit her testimony over that of defendant,wherein he maintained that he did not restrain the victim in any way and that she consented to thesexual activity (see People v Brink,78 AD3d 1483, 1484 [2010], lv denied 16 NY3d 742 [2011], deniedreconsideration 16 NY3d 828 [2011]). Thus, viewing the evidence in light of the elements ofthe counts of kidnapping as charged to the jury (see People v Danielson, 9 NY3d [*2]342, 349 [2007]), we conclude that the verdict with respect to thosecounts is not against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]).
Defendant further contends that County Court's Ventimiglia ruling, which allowedthe People in their direct case to present evidence of subsequent crimes committed by defendantagainst the same victim in Bronx County, effectively deprived him of his Fifth Amendmentrights with respect to the subsequent crimes. Defendant failed to preserve that contention for ourreview (see CPL 470.05 [2]) and, in any event, that contention lacks merit. The courtruled that the People were not allowed to cross-examine defendant concerning those subsequentcrimes in Bronx County in the event that he chose to testify (see generally People v Betts,70 NY2d 289, 291 [1987]; People v Sandoval, 34 NY2d 371 [1974]), and evidence ofthose crimes was admissible under People v Molineux (168 NY 264, 293-294 [1901];cf. People v Mack, 234 AD2d 565, 566 [1996], lv denied 89 NY2d 1096 [1997]).Given the brutal and sadistic nature of the crimes committed by defendant, and his prior criminalrecord, we conclude that the sentence is not unduly harsh or severe.
In his pro se supplemental brief, defendant contends that the court erred in refusing tosuppress evidence obtained by the police from his apartment. According to defendant, the policeobtained the evidence during a search of the apartment to which the victim consented, and shelacked actual or apparent authority to consent to the search. We reject that contention. Althoughthe victim was residing at a friend's house at the time of the search, she had previously lived withdefendant in the apartment and had paid the rent for the month in which the search occurred. Inaddition, she retained a key to the apartment and had left clothing there, and the utilities were stillin her name. Under the circumstances, the court properly concluded that the victim had apparentauthority to consent to the search (see People v Adams, 53 NY2d 1, 8-10 [1981],rearg denied 54 NY2d 832 [1981], cert denied 454 US 854 [1981]; People v Fontaine, 27 AD3d 1144,1145 [2006], lv denied 6 NY3d 847 [2006]; United States v Trzaska, 859 F2d1118, 1120 [1988], cert denied 493 US 839 [1989]; see generally Illinois vRodriguez, 497 US 177, 188-189 [1990]).
Defendant's further contentions in his pro se supplemental brief concerning the alleged legalinsufficiency of the evidence are unpreserved for our review (see People v Hines, 97NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Gray, 86 NY2d10, 19 [1995]), and we have reviewed defendant's remaining contentions therein and concludethat none has merit. Present—Scudder, P.J., Smith, Peradotto, Lindley and Green, JJ.