| People v Marra |
| 2012 NY Slip Op 04899 [96 AD3d 1623] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Isidoro Marra,Appellant. |
—[*1] John H. Crandall, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered May 5,2011. The judgment convicted defendant, upon a jury verdict, of rape in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence to a determinate term ofimprisonment of 10 years and a period of postrelease supervision of five years and as modifiedthe judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of rape inthe first degree (Penal Law § 130.35 [2]), defendant contends that the verdict is against theweight of the evidence because the People failed to prove the element of penetration beyond areasonable doubt. We reject that contention. The victim testified at trial that she had fallen asleepon a couch at an inn owned by defendant, after consuming multiple glasses of wine with herdinner. She further testified that, when she awoke, defendant was on top of her and his penis wasinside her vagina. The victim's testimony was corroborated by the fact that defendant's DNA wasfound on the area between her vagina and anus. We also note that the victim was crying andhysterical when examined by medical personnel at the hospital shortly after the rape was reportedto the police. When defendant was questioned by the police, he said that he had been drinkingalcohol that night and did not "remember anything" about what happened with the victim.Defendant further stated that he had "no idea" how the events had transpired such that he was inthe room where the victim was sleeping when the rape occurred. Toward the end of his policeinterview, defendant asked, "What if I can prove that [the victim] came on to me first," thussuggesting that intercourse may have taken place as the victim had alleged. Finally, based on theevidence at trial, we discern no motive for the victim to make a false accusation againstdefendant, with whom she was acquainted and had no apparent grudges.
As defendant correctly notes, swabs taken from the victim's vagina at the hospital testednegative for defendant's sperm. The absence of defendant's sperm, however, is not necessarilyinconsistent with the victim's claim of penetration because the victim testified that defendant didnot ejaculate. More troubling is the absence of defendant's DNA on the swabs taken from thevictim's vagina, inasmuch as a forensic scientist testified for the People at trial that it is[*2]"possible" for there to be a skin to skin transfer of DNA.Nevertheless, the forensic scientist did not testify that there is always a transfer of DNAfrom skin to skin contact, and no evidence to that effect was presented to the jury.
This case turned largely upon the credibility of the victim, and the jury evidently believed thevictim's testimony that defendant inserted his penis into her vagina without her consent while shewas asleep. We are cognizant of our duty to conduct an independent assessment of all of theproof as well as our authority to "substitute [our] own credibility determinations for those madeby the jury in an appropriate case" (People v Delamota, 18 NY3d 107, 116-117 [2011]). In our view,however, this is not an appropriate case in which to substitute our own credibility determinations,given that the victim's testimony was not riddled with inconsistencies or otherwise substantiallyimpeached. "Sitting as the thirteenth juror . . . [and] weigh[ing] the evidence in lightof the elements of the crime as charged to the other jurors" (People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that,although a different verdict would not have been unreasonable, it cannot be said that the juryfailed to give the evidence the weight it should be accorded (see People v Bleakley, 69NY2d 490, 495 [1987]; People vKalen, 68 AD3d 1666, 1666-1667 [2009], lv denied 14 NY3d 842 [2010]).
Defendant further contends that County Court improperly admitted in evidence photographsof the victim taken at the hospital. According to defendant, the People failed to lay an adequatefoundation for their admission because the victim was not asked how she sustained the marksand bruises depicted therein and there was no evidence that the injuries depicted were caused bydefendant. Defendant further contends that the potential for prejudice arising from thephotographs outweighed their probative value. We conclude that defendant failed to preserve hispresent contentions for our review, because they differ from those raised before the trial court(see CPL 470.05 [2]; People v Major, 251 AD2d 999, 1000 [1998], lvdenied 92 NY2d 927 [1998]; People v Hobbs, 178 AD2d 1017 [1991], lvdenied 79 NY2d 1002 [1992]). In his motion in limine, defendant sought to preclude thephotographs on the ground that they were not timely turned over to the defense, and at trial heobjected to the admission of the photographs generally and on the ground that there would be "nomedical testimony indicating the length of time that those bruises were there from the time thatthey were initially inflicted."
In any event, we conclude that the People did lay a proper foundation for admission inevidence of the photographs. "Properly authenticated photographs are admissible wheneverrelevant to describe the physical characteristics of a person, place, or thing" (Prince, Richardsonon Evidence § 4-213, at 148-149 [Farrell 11th ed]). Photographs are properly authenticatedwhen "a competent witness possessing knowledge of the matter" identifies the subject depictedtherein and verifies that the photographs accurately represent the subject depicted (People vByrnes, 33 NY2d 343, 347 [1974]; see generally People v Austin, 13 AD3d 1196, 1197 [2004], lvdenied 5 NY3d 785 [2005]). Here, contrary to defendant's contention, the People laid aproper foundation for the admission of the photographs, inasmuch as the nurse who took themtestified that the photographs accurately represented the portions of the victim's body depictedtherein.
Although the People laid a proper foundation for the photographs, however, it does notnecessarily follow that the court properly admitted them in evidence. The photographs must alsobe relevant, i.e., they must "tend 'to prove or disprove a disputed or material issue, to illustrate orelucidate other relevant evidence, or to corroborate or disprove some other evidence offered or tobe offered' " (People v Wood, 79 NY2d 958, 960 [1992], quoting People vPobliner, 32 NY2d 356, 369 [1973], rearg denied 33 NY2d 657 [1973], certdenied 416 US 905 [1974]), and we conclude that they were relevant. In addition, weconclude that their probative value outweighed their potential for prejudice (see People vAcevedo, 40 NY2d 701, 704-705 [1976]). The nurse who took the photographs testified thatsome of the bruises and red marks depicted looked "fresh" while other injuries looked "older."[*3]The photographs of the "fresh" injuries were relevant to theissue of physical helplessness under the People's theory that, by undressing the victim and havingsexual intercourse with her while she was sleeping, defendant caused bruising and red marks tothe victim's body that would not normally result from consensual intercourse. Even assuming,arguendo, that the court erred in admitting photographs depicting "older" bruises that may havepredated the rape, we conclude that any such error is harmless (see People v Crimmins,36 NY2d 230, 240-241 [1975]). The injuries in question were relatively minor in nature and thusnot inflammatory, and, based on defense counsel's cross-examination of the nurse, the jury waswell aware of the fact that the "older" bruises may have existed prior to the rape.
Defendant failed to preserve for our review his contention that he was denied a fair trial byprosecutorial misconduct during summation (see People v Gonzalez, 81 AD3d 1374, 1374 [2011]; People v Smith, 32 AD3d 1291,1292 [2006], lv denied 8 NY3d 849 [2007]) and, in any event, we conclude that none ofthe prosecutor's comments was so egregious as to deny defendant a fair trial (see People v Rivers, 82 AD3d1623, 1624 [2011], lv denied 17 NY3d 904 [2011]; People v Quinones, 5 AD3d 1093,1094 [2004], lv denied 3 NY3d 646 [2004]). We reject defendant's further contention thathe was denied effective assistance of counsel. The purported shortcomings of defense counseldid not demonstrate actual ineffectiveness and, viewing defense counsel's representation intotality and as of the time of the representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We agree with defendant, however, that, in light of his age, his lack of a prior criminal recordand other mitigating circumstances, the sentence of a determinate term of incarceration of 18years followed by 15 years of postrelease supervision is unduly harsh and severe. As a matter ofdiscretion in the interest of justice, we therefore modify the judgment by reducing the sentence toa determinate term of imprisonment of 10 years and a period of five years of postreleasesupervision. Present—Scudder, P.J., Smith, Fahey, Lindley and Martoche, JJ.