| People v Blond |
| 2012 NY Slip Op 04787 [96 AD3d 1149] |
| June 14, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark Blond,Jr., Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Rose, J.P. Appeals (1) from a judgment of the Supreme Court (R. Sise, J.), rendered July 31,2009 in Schenectady County, upon a verdict convicting defendant of the crimes of rape in thefirst degree, rape in the third degree, criminal sexual act in the third degree, sexual abuse in thethird degree, attempted assault in the second degree, endangering the welfare of a child, criminalmischief in the third degree and criminal mischief in the fourth degree, and (2) by permission,from an order of the County Court of Schenectady County (Drago, J.), entered August 31, 2010,which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
Defendant was indicted on 10 counts stemming from his sexual abuse and rape of a15-year-old victim, his attempted assault with a brick on his wife, who was the victim's aunt, andproperty damage he caused to his wife's vehicle when he repeatedly drove his own vehicle into it.When he was arrested and taken into custody, he also caused property damage to a police vehicleby shattering its window in a violent rage. Following a jury trial, defendant was convicted of rapein the first degree, rape in the third degree, criminal sexual act in the third degree, sexual abuse inthe third degree, attempted assault in the second degree, endangering the welfare of a child,criminal mischief in the third degree and criminal mischief in the fourth degree. Supreme Court(R. Sise, J.) sentenced defendant to an aggregate prison term of 22
Prior to trial, Supreme Court held a Molineux/Ventimiglia hearing and determinedthat the People would be allowed to offer evidence of prior domestic violence and abusivebehavior by defendant for the purposes of establishing the element of forcible compulsion,providing necessary background information on the nature of the relationship and placing thecharged conduct in context (see Peoplev Leeson, 12 NY3d 823, 826-827 [2009]; People v Shofkom, 63 AD3d 1286, 1287-1288 [2009], lvdenied 13 NY3d 799 [2009], appeal dismissed 13 NY3d 933 [2010]; People vWatson, 281 AD2d 691, 694 [2001], lv denied 96 NY2d 925 [2001]). Defendantconcedes that there was a proper nonpropensity purpose for the admission of the evidence, but heargues that the probative value of these prior bad acts was outweighed by their prejudicial nature.We cannot agree. Supreme Court balanced the probative value and prejudicial nature of theevidence by limiting it to specific acts of violence that were witnessed by the victim and occurredafter she began residing with defendant and his wife. The evidence has substantial probativevalue and provided necessary background information regarding the victim's fear of defendantand resulting unwillingness to tell anyone about the sexual abuse until after he was in policecustody as a result of his most recent violent altercation with his wife (see People v Cass, 18 NY3d 553,563 [2012]; People v Poquee, 9AD3d 781, 782 [2004], lv denied 3 NY3d 741 [2004]; People v Tarver, 2 AD3d 968, 969[2003]). As contemporaneous limiting instructions on the use of such evidence were given twiceduring the trial, as well as in the final jury charge, any error in failing to give the instructions athird time after the wife's testimony—a failure that was not called to the court's attentionby counsel—is harmless (seePeople v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]).
We next turn to defendant's allegations that the People failed to establish forcible compulsionwith respect to the charge of rape in the first degree, that the verdicts were contrary to thephysical evidence and that the victim's testimony was incredible as a matter of law. In evaluatingthe legal sufficiency of the evidence, we view it in a light most favorable to the People and willnot disturb a verdict as long as there is a "valid line of reasoning and permissible inferenceswhich could lead a rational person to the conclusion reached by the jury" (People vBleakley, 69 NY2d 490, 495 [1987]; see People v Houghtaling, 79 AD3d 1155, 1156-1157 [2010],lv denied 17 NY3d 806 [2011]). As relevant here, forcible compulsion includes "a threat,express or implied, which places a person in fear of . . . physical injury to. . . herself or another person" (Penal Law § 130.00 [8] [b]). In determiningwhether an implied threat existed, the jury could consider the victim's age relative to that ofdefendant, the relationship between them and the victim's fear of what defendant might havedone if she did not comply (see People vFulwood, 86 AD3d 809, 810-811 [2011], lv denied 17 NY3d 952 [2011]; People v Hemingway, 85 AD3d1299, 1301 [2011]).
The People's evidence established that the victim had witnessed numerous instances ofviolence by defendant against his wife since she had moved in with the couple in October 2007.During the early morning hours of May 2, 2008, when the victim was 15 years old, the29-year-old defendant demanded sex and, when she said no, he pulled her pants down,maneuvered her to the floor and held her there while he had intercourse with her. The victimtestified that she was afraid to cry out for fear that it would only lead to more physical violenceby defendant. The victim's testimony regarding a number of sexually abusive encounters withdefendant during the [*3]relatively short time frame in which sheresided in his home, her fear of defendant, his use of physical force to hold her down, as well asthe atmosphere of physical violence and intimidation she had witnessed were sufficient toestablish the element of forcible compulsion (see People v Coleman, 42 NY2d 500,505-506 [1977]; People v Fulwood, 86 AD3d at 810-811; People v Porter, 82 AD3d 1412,1414 [2011], lv denied 16 NY3d 898 [2011]).
A physical examination of the victim performed a few days after the rape revealed recentinjuries to her hymen and irritation consistent with the reported sexual activity. The evidence alsoshowed that a pair of the victim's jeans—which had defendant's semen onthem—were recovered by the police during a search of defendant's home. Defendant pointsto no inconsistencies or other aspects of the victim's testimony that would render it incredible asa matter of law (see People vGalloway, 93 AD3d 1069, 1071-1072 [2012]; People v Shofkom, 63 AD3d at1287). In short, our review of the record convinces us that the evidence was legally sufficient tosatisfy each element of every crime for which defendant was convicted. Furthermore, upon ourindependent review of the evidence in a neutral light, with due regard to the jury's credibilitydeterminations (see People vWright, 81 AD3d 1161, 1163 [2011], lv denied 17 NY3d 803 [2011]), we findthat the verdicts are not against the weight of the evidence (see People v Hemingway, 85AD3d at 1301; People v Battease,74 AD3d 1571, 1575 [2010], lv denied 15 NY3d 849 [2010]; People vShofkom, 63 AD3d at 1287).
Defendant also contends that Supreme Court improperly precluded him from calling threesocial workers to testify that they had conducted a statement validity analysis test of the victimfor use in Family Court, where such testimony is authorized if it tends to support the reliability ofa child victim's out-of-court statement of abuse or neglect (see Family Ct Act §1046 [a] [vi]). Defendant concedes that such opinion evidence cannot be used in a criminalproceeding by the People during their case-in-chief (see People v Zurak, 168 AD2d 196,199 [1991], lv denied 79 NY2d 834 [1991], cert denied 504 US 941 [1992]), butargues that it should be admissible for purposes of impeachment where, as here, such validationtesting fails to corroborate the victim's claims. We are not persuaded, however, as there is nocorresponding statutory authority for the admission of such evidence in a criminal proceeding.Moreover, defendant was otherwise fully able to attack the victim's credibility throughcross-examination based on her alleged bias in favor of the wife and her failure to report heraccusations earlier.
Defendant also argues that Supreme Court should have conducted an inquiry of a juror whoappeared to be sleeping at one point during the trial, yet he did not make this request of the courtand did not object to the juror's continued service. Accordingly, his argument that an inquiryshould have occurred is unpreserved for our review (see People v Galloway, 93 AD3d at1072). Were we to consider this matter, we would find that Supreme Court's observationsprovided it with an adequate basis for its conclusion that the juror had not missed a significantportion of the trial testimony and, therefore, was not grossly unqualified to continue to serve as ajuror (see People v Buel, 53 AD3d930, 931 [2008]; compare People v Adams, 179 AD2d 764, 765 [2d Dept 1992]).
Nor can we agree with defendant's contention that he was denied the effective assistance ofcounsel. The claim that counsel erred by failing to seek dismissal of the indictment pursuant toCPL 190.50 (5) (b) is without merit as defendant offered no proof in his CPL 440.10 motion thathe timely informed counsel of his desire to testify before the grand jury. In any event, the failureto facilitate testimony before a grand jury is not per se ineffective assistance of counsel (see People v Simmons, 10 NY3d946, 949 [2008]; People vLasher, 74 AD3d 1474, 1475-1476[*4][2010], lvdenied 15 NY3d 894 [2010]). Although defendant also claims that his counsel incorrectlyadvised him of the maximum sentence to which he was exposed while he was considering thepretrial offer, and despite the apparent mistake either in what counsel said on the record or whatwas transcribed when defendant rejected the pretrial offer against his counsel's advice, theaffidavit defendant submitted in support of his CPL 440.10 motion confirms that, prior toproceeding to trial, he was well aware of the potential for a 25-year sentence on the top count ofrape in the first degree. When viewed in their totality, the circumstances reveal that counsel wasprepared, made appropriate pretrial motions, pursued a credible defense strategy, made cogentopening and closing statements, ably cross-examined the People's witnesses, presented witnesseson the defense case and obtained dismissal of two counts of the indictment. We have consideredall of the ineffective assistance claims, including each of those made by defendant in his pro sebrief, and find that he received meaningful representation (see People v Muniz, 93 AD3d 871, 876 [2012]; People vFulwood, 86 AD3d at 811; People vElwood, 80 AD3d 988, 990 [2011], lv denied 16 NY3d 858 [2011]).
With respect to the sentence, defendant argues that the disparity between the final pretrialoffer of 3½ years in prison and the sentence ultimately imposed reflects an extreme penaltyfor his exercise of his right to a jury trial. Although the disparity is significant, there is no recordevidence that the sentences were retaliatory or vindictively imposed as a penalty for defendant'sexercise of his right to a jury trial (seePeople v Snyder, 91 AD3d 1206, 1215 [2012]; People v Molina, 73 AD3d 1292, 1293 [2010], lv denied 15NY3d 807 [2010]). We must agree with Supreme Court that the crimes are of a serious nature,they were committed against a backdrop of physical violence, they involved a vulnerableteenager who was living in defendant's household, he received less than the maximum allowablesentence for rape in the first degree and he has refused to take any responsibility for his conductor exhibit any remorse (see People v Snyder, 91 AD3d at 1206; People v Tomlinson, 53 AD3d798, 800 [2008], lv denied 11 NY3d 835 [2008]). Accordingly, we can find no abuseof discretion or extraordinary circumstances that would warrant our modification of the sentence(see People v Rhodes, 91 AD3d1185, 1188 [2012]; People v Elwood, 80 AD3d at 988).
Finally, defendant's arguments that certain counts in the indictment are duplicitous, that theprosecutor engaged in misconduct and that the charge to the jury was inadequate are unpreservedand, were we to consider them, without merit as well.
Malone Jr., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment and order areaffirmed.