| People v Hoppe |
| 2012 NY Slip Op 04789 [96 AD3d 1157] |
| June 14, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph G.Hoppe, Appellant. |
—[*1] Gerald F. Mollen, Binghamton (Joann Rose Parry of counsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 8, 2010, upon a verdict convicting defendant of the crimes of predatory sexualassault (three counts), attempted rape in the first degree (three counts), criminal possession of aweapon in the third degree and grand larceny in the fourth degree.
In March 2008, defendant invited victim A to his apartment. Victim A later testified thatwhen she arrived, he prevented her from leaving, forced her to participate in sexual acts and toldher that he would kill her if she told anyone what had happened. In June 2008, victim B went todefendant's apartment, purportedly to help him move furniture. She testified that he forced her toperform oral sex, attempted to have intercourse with her and threatened to kill her. After victim Balerted police, defendant was indicted for various crimes arising from the June 2008 incident.Thereafter, victim A reported the March 2008 events, and a superceding indictment was handedup incorporating the original indictment as well as additional crimes pertaining to victim A.Following a jury trial, defendant was convicted of predatory sexual assault (three counts), andattempted rape in the first degree (three counts), criminal possession of a weapon in the firstdegree and grand larceny in the fourth degree. County Court sentenced defendant as a secondfelony offender to an aggregate prison term of 50 years to life. Defendant appeals, and we affirm.
We are unpersuaded by defendant's contention that he was deprived of his right to be [*2]present during sidebar interviews with prospective jurors (seePeople v Antommarchi, 80 NY2d 247, 250 [1992]). At the beginning of jury selection,County Court invited prospective jurors and counsel to the bench to discuss general excuses. Asthis initial proceeding did not address potential bias "or otherwise present the potential for[defendant's] meaningful participation," his presence was not required (People v Fabricio, 3 NY3d 402,406 [2004]; accord People vHampton, 64 AD3d 872, 875 [2009], lv denied 13 NY3d 796 [2009]).Nonetheless, the court advised defendant, "[Y]ou can approach or you can stay there, it's up toyou" and then, in apparent response to a nonverbal signal from defendant or his counsel, stated,"He's waiving his presence, no problem." A second sidebar conference, with jurors who said theirlives had been affected by sexual assault, did present the issue of their potential bias, and thusdefendant had a fundamental right to participate (see People v Antommarchi, 80 NY2d at250). Before conducting these interviews, the court again invited counsel and defendant toapproach and again apparently confirmed defendant's nonverbal response, stating, "You'rewaiving, not a problem. He waives." Thereafter, defendant exercised his right to participate in thefurther sidebar juror interviews.
We agree that "the better practice would have been to state the substance of the right beingwaived" and obtain more explicit confirmation of defendant's waiver (People v Velasquez, 1 NY3d 44,49 [2003]). However, County Court's initial invitation to defendant to participate in thediscussion of general excuses, although "broader than the law requires, . . .necessarily included the rights guaranteed by Antommarchi" (People v Williams, 15 NY3d 739,740 [2010]). Neither defendant nor his counsel objected when the court stated on the record thatdefendant was waiving his right to participate in the second sidebar conference, and nothing inthe record calls into doubt the voluntary, intelligent and knowing character of this waiver (seePeople v Keen, 94 NY2d 533, 538-539 [2000]; People v Roberts, 80 AD3d 787, 790 [2011], lv denied 16NY3d 862 [2011]). Accordingly, defendant did not meet his burden of demonstrating that he waswrongfully excluded (see People v Velasquez, 1 NY3d at 49-50; People vHampton, 64 AD3d at 875; People v Jackson, 296 AD2d 658, 659 [2002], lvdenied 98 NY2d 768 [2002]).
Defendant next contends that the verdict was not supported by the weight of the evidence.Where, as here, a different verdict would not have been unreasonable, this Court must view theevidence in a neutral light and, "like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Romero, 7NY3d 633, 643 [2006] [internal quotation marks and citations omitted]; see People v Kruppenbacher, 81 AD3d1169, 1174 [2011], lv denied 17 NY3d 797 [2011]). Victim A testified thatdefendant invited her to his apartment, ostensibly to reimburse her for the cost of calls he hadmade to her cell phone. She stated that while two men who had given her a ride to the apartmentwaited in the car, defendant forced her into his bedroom, compelled her to perform varioussexual acts and threatened to kill her, and that she eventually escaped by telling defendant thatshe would use the money he had given her for cell phone calls to purchase drugs for him. One ofthe men who drove victim A to the apartment testified that she was shaken up, trembling andscared when she emerged; the second man testified that victim A said that defendant had rapedher and she was "tattered" and crying. The second man testified that he later asked defendantwhether he had raped victim A, and defendant confirmed that he had.
Victim B testified that she had formerly been acquainted with defendant and had once filedharassment charges against him, but did not immediately recognize him upon encountering [*3]him in June 2008. She testified that when she entered defendant'sapartment, he locked the door, blocked it with a crate-like object, and told victim B that she wasgoing to pay for the harassment charges, which had resulted in his incarceration and therevocation of his parole. He struck victim B, ripped her shirt, and dragged her into the bedroom,where he brandished a knife and ordered her to remove her clothes before forcing her to engagein sexual activities. Victim B testified that defendant took her cell phone, repeatedly threatenedto kill her, and held a knife to her throat, causing a small cut on her neck. After several hours, shepersuaded defendant to take her to the hospital by feigning illness and, upon reaching theemergency room, asked a nurse to call police.
Defendant testified, denying that he harmed either victim, claiming that any sexual contactthey had was consensual, and asserting that the purpose of his encounters with them was toobtain and use drugs. On appeal, he contends that neither victim is credible, as both havehistories of drug use, prostitution and criminal offenses involving dishonesty. However, theseissues were fully explored during cross-examination and "raised credibility questions which werewithin the jury's province to resolve" (People v Moore, 29 AD3d 1077, 1078 [2006] [internal quotationmarks and citation omitted]; see Peoplev Stearns, 72 AD3d 1214, 1216 [2010], lv denied 15 NY3d 778 [2010]).Moreover, other witnesses offered testimony that corroborated and supported substantial aspectsof the victims' accounts. As defendant argues, some parts of victim B's testimony wereundermined by telephone records. Nonetheless, the jury "was entitled to credit some of hertestimony while discounting other aspects" (People v Kuykendall, 43 AD3d 493, 495 [2007], lv denied9 NY3d 1007 [2007]; see People vAlteri, 49 AD3d 918, 920 [2008]). According the appropriate deference to the jury'scredibility assessments, we find no reason to conclude that the evidence was not given the properweight (see People v Littebrant, 55AD3d 1151, 1155-1156 [2008], lv denied 12 NY3d 818 [2009]; People v Smith, 27 AD3d 894,897 [2006], lv denied 6 NY3d 898 [2006]).
Rose, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.