| People v Swinton |
| 2011 NY Slip Op 06325 [87 AD3d 491] |
| August 25, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Reginald Swinton, Appellant. |
—[*1] Reginald Swinton, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Gina Mignola of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered May 24,2007, convicting defendant, after a jury trial, of rape in the first degree (two counts), criminalsexual act in the first degree (three counts), burglary in the second degree (three counts), robberyin the third degree (two counts) and attempted robbery in the third degree, and sentencing him, asa persistent violent felony offender, to an aggregate term of 150 years to life, unanimouslyaffirmed.
On July 15, 2005, by a 16-count indictment, defendant was charged with multiple counts offorcible rape, forcible criminal sexual act, burglary, robbery, and attempted robbery. Specifically,it was alleged that on three separate dates, over the course of two weeks, on the upper west andeast sides of Manhattan and at approximately the same times, defendant broke into three separatepremises, took money, and either sexually assaulted or raped the women whom he found inside.
At trial, with regard to the first incident, it was established that the assailant entered thevictim's premises on East 89th Street through a window after she had gone to sleep, put a cushionover her face, asked for and took money from her purse, asked the victim to blindfold herselfwith her own shirt, threatened to kill her if she disobeyed, told her to "relax, relax" immediatelyprior to forcing her to have intercourse with him and then forced her to perform oral sex on him.With respect to the second incident, the evidence at trial established that the assailant entered thevictim's premises on West 87th Street through a window after she had gone to sleep, put a pillowover her face, threatened to kill her if she disobeyed, asked the victim to blindfold herself withher husband's scarf, asked for and took money from her wallet, told her to "relax" before heforced her to have intercourse with him, and then forced her to perform oral sex. With regard tothe third incident, the evidence at trial established that the assailant entered the victim's premiseson East 89th Street through a window, again after she had gone to sleep, put a pillow over thevictim's face, asked for and looked for money, threatened to kill her, asked the victim to blindfoldherself with her own t-shirt, forced her to perform oral sex and, telling her to "relax" [*2]several times, tried to force her to have intercourse. None of thevictims could identify defendant. A palm print found at the premises where the first incidentoccurred matched defendant's palm print. Semen discovered at the premises where the secondincident occurred yielded DNA matching defendant's DNA. However, no physical evidencelinked defendant to the crimes committed within the third premises.
Because the assailant's identity with respect to the third incident could not be independentlyestablished and because the assailant's conduct during all three incidents was so similar anddistinctive, the trial court properly allowed the jury to consider the issue of defendant's identity asthe perpetrator of the third incident through the use of the assailant's modus operandi (Peoplev Beam, 57 NY2d 241, 250-251 [1982]; People v Allweiss, 48 NY2d 40, 47 [1979]).Moreover, the trial court properly instructed the jury that it could not link defendant to the thirdcrime merely because it concluded that he had a propensity for criminal activity, but could onlydo so if it found that defendant had committed either of the first two incidents and that theassailant who committed the third employed the same unique distinctive conduct (seeBeam at 250-253).
Defendant's contention that the crimes alleged and in particular the assailant's behaviorduring the crimes were neither similar nor unique enough to establish a pattern is meritless. Onthe contrary, all three incidents occurred within 15 days of each other and involved an assailantwho broke into a premises through a window at night, covered his victim's face with a pillow orcushion, demanded that the victim blindfold herself with an article of her own clothing orclothing found within the victim's premises, repeatedly told each victim to "relax," demandedmoney, threatened to kill the victim, forced the victim to perform oral sex, and either forced ortried to force the victim to engage in sexual intercourse. Thus, the assailant's behavior gave riseto a distinct pattern making it "highly probative of . . . [his] identity" (Beamat 253; People v Phillips, 70 AD3d562, 562 [2010], lv denied 16 NY2d 799 [2011] ["(t)he first three robberies,occurring within a short time period and in the public areas of apartment buildings located withinclose geographic proximity, had many similarities that formed a 'distinctive repetitive pattern' "];People v Bryant, 258 AD2d 293 [1999], lv denied 93 NY2d 1043 [1999];People v West 160 AD2d 301, 301-302 [1990], lv denied 76 NY2d 798 [1990][distinctive modus operandi established when "attacks occurred within a two-month periodagainst four unaccompanied women in the late afternoon in common areas of office buildingswhich were all located within a two-block-wide corridor between 30th and 45th Streets"]). Whilewe acknowledge that the crimes here were not identical and that slight differences in theircommission existed, "[i]t is not necessary that the pattern be ritualistic for it to be consideredunique; it is sufficient that it be a pattern which is distinctive" (Beam at 253).
Defendant's challenge to the sufficiency and weight of the evidence with respect to hisconviction for the third incident is without merit. A review of the record evinces that the jury'sconclusion of guilt is rationally supported by the evidence adduced at trial (People v Danielson, 9 NY3d 342,349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]). Specifically, the verdict issupported by the testimony of the victim describing the third attack and the identification of thedefendant as the perpetrator based on his unique modus operandi. For this very reason, it cannotbe said that the verdict is against the weight of the evidence since an acquittal on this recordwould have been unreasonable (id.).
Since the trial court permitted only limited inquiry into defendant's extensive criminal [*3]record, it minimized any potential prejudice and thus itsSandoval ruling balanced the appropriate factors and was a proper exercise of discretion(People v Hayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d 455, 458-459[1994]; People v Pavao, 59 NY2d 282, 292 [1983]).
We perceive no basis for reducing the sentence. In particular, defendant's contention thatinsofar as his sentence, in the aggregate, is illegal, should be vacated, and must be capped at 50years pursuant to Penal Law § 70.30 (1) (e) (vi), is meritless. Preliminarily, we note thatthe Penal Law (§ 70.30 et seq.) does "not restrict the number or length of theindividual consecutive sentences that may be imposed, nor does it require that the aggregatesentence be vacated whenever the aggregate maximum [sentence] exceeds the limitation"(People v Moore 61 NY2d 575, 578 [1984]). Instead, the statute "merely requires that theDepartment of Correctional Services calculate the aggregate maximum length of imprisonmentconsistent with the applicable limitation" (id.; People v Belle, 277 AD2d 143,143 [2000], lv denied 96 NY2d 780 [2001]). Moreover, where as here, defendant wassentenced as a persistent violent felony offender, the cap imposed by Penal Law § 70.30(1) (e) (vi) does not apply and does not, in any event, warrant reduction of his sentence(Matter of Roballo v Smith, 63 NY2d 485, 489 [1984] ["(t)he purposes of both sections(Penal Law § 70.10, enhancing a defendant's sentence because he's a persistent felonyoffender and Penal Law § 70.30 et seq.) will be served if section 70.30. . . is read as excluding those situations when the defendant receives consecutivesentences, at least one of which is as a persistent felony offender"]).
We have considered and rejected defendant's pro se speedy trial claim.Concur—Andrias, J.P., Catterson, Moskowitz, Abdus-Salaam and RomÁn, JJ.