| People v Washington |
| 2011 NY Slip Op 07748 [89 AD3d 1140] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KasseemWashington, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered May 28, 2009, upon a verdict convicting defendant of the crime of rape in the first degree.
The victim alleged that she was walking in the City of Schenectady, Schenectady County, when anassailant threatened that he had a knife, dragged her into a nearby park, and raped her. She escapedand was treated later that night at a hospital emergency room, where a forensic examination wasperformed. Defendant was arrested after DNA samples obtained during the examination were matchedwith records of his DNA in a police database. He was indicted on one count of rape in the first degreeand convicted as charged after a jury trial. County Court sentenced him as a second felony offender toa prison term of 18 years and five years of postrelease supervision. Defendant appeals.
Initially, defendant contends that his conviction is against the weight of the evidence, asserting thatthe People did not establish that he had intercourse with the victim by forcible compulsion (seePenal Law § 130.00 [8]; § 130.35 [1]). At trial, defendant admitted that he and the victimengaged in intercourse on the night in question, but he testified that she consented to the encounter inexchange for drugs and that it took place in a hotel room rather than the park. Since a different verdictwould not have been unreasonable based on this testimony, this Court [*2]must "weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" (People vBleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; accord People v Houghtaling, 82 AD3d1493, 1494 [2011], lv denied 17 NY3d 806 [2011]).
The victim testified that as she was walking on her way to a nearby store, two men attempted toentice her into the park. She ignored them, but upon her return, one of them seized her, dragged herinto the park to some playground equipment, held down her hands and raped her. When he releasedher, she fled and hid in a nearby backyard before knocking on a door and asking for assistance. Thewitness who answered the door corroborated this account in part, testifying that the victim wastrembling and crying as she explained that she had been raped in the park, and that her clothing wasdisarranged and dirty. The examining nurse offered further corroboration, testifying, among other things,that the victim had to pause several times to keep from crying as she said that she had been attackedand raped. Although the victim's testimony contained certain inconsistencies, these were largelycollateral to the primary issues and did not render her testimony "so unworthy of belief as to beincredible as a matter of law" (People vScanlon, 52 AD3d 1035, 1039 [2008], lv denied 11 NY3d 741 [2008]). Notably,defendant's testimony also included numerous inconsistencies and internal contradictions, and theversion of events that he gave at trial differed from accounts he had previously given to policeinvestigators. Further, while defendant testified that the victim used drugs on the night of the attack, thenurse who examined her testified that she did not appear to be impaired by alcohol or drugs. As to hisclaim that the victim's lack of injury was inconsistent with her account of a forcible attack, the nursetestified that irritation in her vaginal area was consistent with her description of the rape, and the victimtestified that she did not resist her assailant because he had told her that he had a knife (compare People v Stearns, 72 AD3d1214, 1216 [2010], lv denied 15 NY3d 778 [2010]). The conflicting testimony presenteda credibility issue to be resolved by the jury (see People v Bell, 80 AD3d 891, 892 [2011]; People v Mitchell, 57 AD3d 1308,1309 [2008]). According appropriate deference to its determination and viewing the evidence in aneutral light, we conclude that the weight of the evidence supports the verdict (see People vBleakley, 69 NY2d at 495; People v Stearns, 72 AD3d at 1216; People v Lopez-Aguilar, 64 AD3d1037, 1038 [2009], lv dismissed 13 NY3d 940 [2010]).
Defendant next contends that he was deprived of a fair trial by an erroneous evidentiary ruling.Specifically, County Court ruled before summation that a statement made by the victim during herhospital treatment would be redacted from her medical records. After closing arguments, the courtreversed its ruling and permitted the records to be submitted to the jury without the redaction.Defendant asserts that the court's initial ruling deprived him of the opportunity to argue duringsummation that the statement in the medical records was inconsistent with the victim's trial testimony,but consistent with his own testimony. However, upon reversing its ruling, the court stated that it wouldgrant a mistrial on the basis of the error if either defendant's counsel or the prosecutor moved for thatrelief. Neither did so; thus, the issue is unpreserved (cf. People v Heide, 84 NY2d 943, 944[1994]; People v Carpenter, 52 AD3d1050, 1051 [2008], lv denied 11 NY3d 735 [2008], cert denied 556 US—, 129 S Ct 1613 [2009]). In any event, in view of the limited prejudice to defendant and theextensive credible evidence corroborating the victim's testimony, we find that the error was harmless(see People v Crimmins, 36 NY2d 230, 241-243 [1975]; see generally People v Lindsey, 75 AD3d 906, 908 [2010], lvdenied 15 NY3d 922 [2010]).
We reject defendant's additional contention that his trial counsel's failure to move for a [*3]mistrial deprived him of the effective assistance of counsel. This claimrequired defendant to " 'demonstrate the absence of strategic or other legitimate explanations' forcounsel's allegedly deficient conduct" (Peoplev Caban, 5 NY3d 143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709[1988]; accord People v Garrow, 75AD3d 849, 852 [2010]). Here, defendant's counsel could reasonably have determined that therisk of retrying the case before a different panel of jurors was greater than the prejudice resulting fromcounsel's inability to discuss the victim's statement during summation. Further, counsel could haveconcluded that defendant would be damaged by drawing attention to the statement, in which the victimdescribed a second forcible sexual act in addition to the offense with which defendant was charged(see generally People v Rivera, 71 NY2d at 709; People v Knox, 80 AD3d 887, 889 [2011], lv denied 16 NY3d860 [2011]; People v Jackson, 48AD3d 891, 893-894 [2008], lv denied 10 NY3d 841 [2008]). Although an acquittal didnot result, this Court will not "second-guess [such] reasonable strategy" (People v Knox, 80AD3d at 889; see People v Berroa, 99 NY2d 134, 138 [2002]; People v McCall, 75 AD3d 999, 1002[2010], lv denied 15 NY3d 894 [2010]).
Defendant next contends that he was improperly sentenced as a second felony offender in that thepredicate felony statement was not provided to him until after sentencing had begun and, once received,County Court did not explicitly offer him an opportunity to controvert claims contained in it(see CPL 400.21). Defendant failed to preserve this claim by objecting at the time ofsentencing (see People v Califano, 84AD3d 1504, 1506 [2011], lv denied 17 NY3d 805 [2011]; People v Carroway, 84 AD3d 1501,1501-1502 [2011], lv denied 17 NY3d 805 [2011]), and the record demonstrates that, infact, he had a meaningful opportunity to review and challenge the statement. As we find that there wassubstantial compliance with CPL 400.21, no modification is warranted in the interest of justice (seePeople v Califano, 84 AD3d at 1506-1507; People v Bynum, 68 AD3d 1348, 1350-1351 [2009], lv denied14 NY3d 798 [2010]).
Finally, defendant's contention that his sentence is harsh and excessive is unavailing. In view of hiscriminal history—including, among other offenses, two prior felonies and a misdemeanorconviction arising from his relationship with a 13-year-old girl—as well as the violent and seriousnature of the crime, we find no abuse of discretion or extraordinary circumstances warranting areduction (see People v Appleby, 79AD3d 1533, 1534 [2010]). Nor does the record support the claim that County Court imposed along sentence in retaliation for his rejection of a plea offer and decision to proceed to trial. " '[T]he merefact that a sentence imposed after trial is greater than that offered in connection with plea negotiations isnot proof that defendant was punished for asserting his right to trial' " (People v Chilson, 285AD2d 733, 735 [2001], lvs denied 97 NY2d 640 [2001], 97 NY2d 752 [2002], quotingPeople v Simon, 180 AD2d 866, 867 [1992], lv denied 80 NY2d 838 [1992]; accord People v Molina, 73 AD3d1292, 1293 [2010], lv denied 15 NY3d 807 [2010]).
Peters, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.