| People v Woodard |
| 2012 NY Slip Op 01694 [93 AD3d 944] |
| March 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lawrence A.Woodard, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered May 27, 2009, upon a verdict convicting defendant of the crimes of criminal sexual actin the first degree, sexual abuse in the first degree, criminal possession of a weapon in the thirddegree, coercion in the first degree and menacing in the second degree.
On the afternoon of April 21, 2008, the victim and defendant were talking outside hisapartment when he invited her in for a visit. Shortly after they entered the apartment, defendantthreatened the victim with a kitchen knife and, while he held her about the neck, forced her towalk down the hallway into his bedroom. There, he ordered the victim to disrobe, grabbed her bythe hair, pulling some of it from her head and, after he undressed, sexually assaulted her. Later,the victim told defendant that she needed to be with her son who was about to report for militaryduty and promised to return to the apartment if he would let her leave. Once outside theapartment, the victim called 911 and the police immediately responded. When the police did notfind defendant in his apartment, they searched it pursuant to a search warrant and seized kitchenknives, as well as hair samples found in the bedroom. Later that evening, defendant was arrestedafter he returned to the apartment and was subsequently incarcerated in the county jail. There, theclothes he was wearing when arrested were secured by jail personnel and later taken by the policein connection with their investigation.
On April 28, 2008, defendant was charged by indictment with, among other things, [*2]criminal sexual act in the first degree, sexual abuse in the firstdegree, criminal possession of a weapon in the third degree, menacing in the second degree andcoercion in the first degree. After a jury trial, he was convicted of these crimes and, on hisconviction for sexual assault in the first degree, he received the maximum sentence of 25 years inprison and 25 years of postrelease supervision. Lesser sentences, all of which were directed torun concurrently, were imposed for his other convictions. Defendant now appeals.
Initially, defendant claims that his statutory right to a speedy trial was violated (seeCPL 30.30 [1] [a]). We disagree. The People had six months after the indictment was filed onApril 28, 2008 to announce they were ready for trial (see CPL 30.30 [1] [a]; 1.20 [17]; People v Swan, 90 AD3d 1146,1147 n 1 [2011]). Two days later, defendant was arraigned and defense counsel requested thatCounty Court initiate proceedings to determine if defendant was competent to stand trial(see CPL art 730). After the court issued such an order on May 6, 2008, defendant filedan omnibus motion that, among other things, challenged the legal sufficiency of the evidencesubmitted to the grand jury, and requested that the grand jury minutes be provided to the court forits inspection. Shortly after defendant filed this motion, two psychiatrists submitted reports to thecourt indicating that they had found defendant incompetent to proceed to trial. The People tookthe position that as long as a question existed concerning defendant's competency, they were notrequired to respond to the omnibus motion unless so ordered by the court. A hearing wassubsequently held and, in November 2008, defendant was found to be competent to standtrial.[FN1]The People were then ordered to respond to defendant's omnibus motion and, on January 23,2009, provided the court with the grand jury minutes.
Defendant claims that the delay in providing County Court with the grand jury minutes waschargeable to the People and, because more than six months had passed since the indictment wasfiled, his statutory right to a speedy trial was violated. When determining whether the Peoplehave satisfied their statutory obligation to be ready for trial within six months of the indictmentbeing filed, certain time delays are excludable, including those that occur because proceedingshad to be conducted to determine if a defendant is competent to stand trial (see CPL30.30 [4] [a]; People v Lebron, 88 NY2d 891, 893-894 [1996]; People v Williams, 41 AD3d1252, 1254 [2007]; People vBoda, 28 AD3d 379, 380 [2006], lv denied 7 NY3d 785 [2006]). Here, almostfive months passed after questions were first raised regarding defendant's capacity to understandthe proceedings against him and the court issued its finding that he was competent to stand trial.Since that time period is not chargeable to the People, it is clear that they declared their readinessfor trial within the statutory time period, and defendant's motion to dismiss was appropriatelydenied (see People v Lebron, 88 NY2d at 894; compare People v Johnson, 42 AD3d 753, 754 [2007], lvdenied 9 NY3d 923 [2007]).
Defendant also challenges County Court's decision to permit the People to cross-examinehim at trial regarding his conviction for a felony assault that occurred in 1981. In that [*3]regard, County Court noted that defendant had a lengthy criminalrecord and, in its Sandoval ruling, precluded the People from cross-examining defendantregarding numerous other convictions that appeared on his record. Also, defendant wasincarcerated as a result of this conviction, and remained in custody until three years before thisincident is alleged to have occurred. Therefore, this conviction was not, as defendant contends,so remote as to have no value on the issue of his credibility as a witness at trial (see People v Wilson, 78 AD3d1213, 1215-1216 [2010], lv denied 16 NY3d 747 [2011]; People v Rosa, 47 AD3d 1009,1010 [2008], lv denied 10 NY3d 816 [2008]). Also, the court instructed the jury thatevidence of this conviction was not proof of defendant's guilt and restricted cross-examination sothat the jury was not informed that this conviction was for a sexual assault (see People v Smith, 63 AD3d1301, 1304 [2009], lv denied 13 NY3d 862 [2009]). As a result, the court'sSandoval ruling represented a measured attempt to strike an appropriate balance betweenthe People's right to cross-examine defendant about prior bad acts that were relevant in assessinghis credibility and defendant's right to a fair trial.
Defendant also claims that County Court improperly denied his motion to suppress theclothing that had been taken from him while at the county jail. As previously noted, prior todefendant's arrest, the police obtained a search warrant for his apartment authorizing the seizureof, among other things, "personal items of [the defendant], including but not limited to articlesused for grooming, and clothing items, including black dress pants, blue short sleeve button upshirt and white brief style underwear." Defendant was not arrested until after the police hadcompleted their search of the premises and had left the apartment. Later that evening, they tookdefendant into custody and noted that, at that time, he was wearing black pants and a khakibutton up shirt. These clothes were taken from defendant by jail personnel and stored with hisother belongings at the county jail. The day after he was taken into custody, the police, without awarrant, seized this clothing in connection with their investigation, and a hair sample found on itwas subjected to DNA analysis.[FN2]Defendant argues that since this clothing was not described in the search warrant for hisapartment, the police should have obtained a search warrant authorizing its seizure from thecounty jail, and the clothing should not have been admitted into evidence at trial. However, sincedefendant was wearing this clothing when he was taken into custody by the police and placedunder arrest, he can hardly claim that he had any legitimate expectation of privacy that wasviolated when the police seized these items from the county jail. As such, a search warrantauthorizing the seizure of this clothing was not required (see People v Natal, 75 NY2d379, 383-384 [1990]). Moreover, this clothing had limited evidentiary value when introducedinto evidence at trial and there is simply "no reasonable possibility" that it played any role in thejury's decision to convict defendant (People v Crimmins, 36 NY2d 230, 237 [1975]). Assuch, any error that may have been committed by its admission into evidence was "harmlessbeyond a reasonable doubt" (id.; see People v Marshall, 57 AD3d 1163, 1165 [2008]).
Defendant next argues that County Court should not have allowed the People to introduceevidence seized from his apartment that was not listed on the return form prepared by the policeand filed with the court in connection with the execution of the search warrant. Specifically, thereturn only listed kitchen knives as property that had been seized from defendant's apartmentpursuant to the search warrant, and made no mention of the hair samples that had been recoveredfrom his bedroom. However, in response to an inquiry from defense [*4]counsel, police filed an amended return in April 2009, which listedthe hair samples found in defendant's bedroom, as well as the clothing taken from the county jail,and a hair sample found on those clothes. Defendant argues that since this amended return wasnot prepared until well after the police had executed the search warrant and had filed the originalreturn, the items listed on it should not have been admitted into evidence at trial.
CPL 690.50 (5) states that "[u]pon seizing property pursuant to a search warrant, a policeofficer must without unnecessary delay return to the court the warrant and the property, and mustfile therewith a written inventory of such property, subscribed and sworn to by such officer."However, the filing of such a return was a ministerial act and "noncompliance will notinvalidate" a search that was properly executed pursuant to a valid search warrant (People vNelson, 144 AD2d 714, 716 [1988], lv denied 73 NY2d 894 [1989]; see People v Fernandez, 61 AD3d891, 892 [2009], lv denied 13 NY3d 744 [2009]; People v Dominique, 229AD2d 719, 720 [1996], affd 90 NY2d 880 [1997]; People v Morgan, 162 AD2d723, 724 [1990]). Here, County Court, after a hearing, found that the failure to include all of theitems seized by the police in the original return was an oversight and did not result in anymeaningful prejudice to defendant. On this record, we see no reason to disturb this determinationand find that defendant's motion in regard to the amended return was properly denied.
Finally, contrary to defendant's claim, the merger doctrine does not apply to the crime ofcoercion (see generally People v Cassidy, 40 NY2d 763, 765 [1976]; see People v Scott, 47 AD3d 849,850 [2008], lv denied 10 NY3d 870 [2008]; People v Richard, 30 AD3d 750, 755 [2006], lv denied 7NY3d 869 [2006]). Instead, it "is intended to preclude a conviction for kidnapping based on actswhich are 'so much the part of another substantive crime that the substantive crime could nothave been committed without such acts and that independent criminal responsibility may notfairly be attributed to them' " (People vMao-Sheng Lin, 50 AD3d 1251, 1252 [2008], lv denied 10 NY3d 961 [2008],quoting People v Gonzalez, 80 NY2d 146, 153 [1992]; see People v Cassidy, 40NY2d at 767). Moreover, holding the victim at knife point and forcing her to walk down ahallway to the bedroom were discreet acts and constituted competent proof that defendantcommitted the crime of coercion before perpetrating this sexual assault (see generally Peoplev Scott, 47 AD3d at 850; People v Sceravino, 193 AD2d 824, 825 [1993], lvdenied 82 NY2d 759 [1993]). As such, these acts warrant "punishment separate from theother crimes he committed" (People v Scott, 47 AD3d at 850).
Defendant's remaining claim has been reviewed and found to be lacking in merit.
Peters, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: On July 2, 2008, County Courtissued a temporary order of observation and defendant was admitted to a psychiatric center fortreatment and evaluation. Shortly after his admission, a psychiatrist at the psychiatric centerreported to the court that defendant was competent and fit to proceed to trial. Defendant,however, requested that a hearing be held prior to the court making a finding regarding hiscompetency.
Footnote 2: The hair sample found on theshirt could not be subjected to DNA testing because it did not have any root cells.