| People v Justice |
| 2012 NY Slip Op 06678 [99 AD3d 1213] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Clarence M.Justice, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered September 29, 2010. The judgment convicted defendant, upon a jury verdict, of rape inthe third degree (two counts) and criminal sexual act in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing those parts convicting defendant of rape in the third degree under Penal Law §130.25 (2) and criminal sexual act in the third degree under Penal Law § 130.40 (2) anddismissing counts one and three of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts each of rape in the third degree (Penal Law § 130.25 [2], [3]) and criminal sexualact in the third degree (§ 130.40 [2], [3]). We reject defendant's contention that theevidence is legally insufficient to support the conviction with respect to the second and fourthcounts of the indictment (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Those counts charge defendant with rape in the third degree and criminal sexual act in the thirddegree for engaging in vaginal and anal intercourse with the victim without her consent, "wheresuch lack of consent [wa]s by reason of some factor other than incapacity to consent"(§§ 130.25 [3]; 130.40 [3]). The testimony of the victim that defendant had anal andvaginal intercourse with her after she repeatedly told him no, and that "it couldn't happen," issufficient to establish a prima facie case with respect to those counts (see generally People vCarroll, 95 NY2d 375, 383 [2000]; People v O'Donnell, 138 AD2d 896, 896-897[1988], lv denied 72 NY2d 864 [1988]). In addition, the People introduced evidence thatsperm was found in the underwear that the victim put on immediately after the sexual conductand that the DNA in that sperm matched that of defendant. Furthermore, viewing the evidence inlight of the elements of those crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict with respect to those counts is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
We agree with defendant, however, that the evidence is legally insufficient to support theconviction of counts one and three of the indictment, charging him with rape in the third degreeand criminal sexual act in the third degree, respectively. In both of those counts, the indictmentalleged that the victim was less than 17 years of age and that defendant was older than 21 years[*2]of age (see Penal Law §§ 130.25 [2];130.40 [2]). The only evidence submitted by the People concerning defendant's age, however,was the testimony of a police officer that he learned during the course of his investigation thatdefendant was born in November 1973 and thus that defendant was 35 years old at the time ofthe incident. We agree with defendant that Supreme Court erred in overruling his hearsayobjection to that testimony. That "out-of-court statement[ ] [was] offered for the truth of the factsasserted [therein] and do[es] not fall within any recognized exception to the hearsay rule" (People v Geddes, 49 AD3d 1255,1256 [2008], lv denied 10 NY3d 863 [2008]; see generally People v Settles, 46NY2d 154, 166-167 [1978]). Indeed, the People failed to establish that the officer obtained thestatement from defendant regarding his date of birth under circumstances demonstrating that thestatement was against his penal interest or that the testimony was admissible pursuant to someother exception to the hearsay rule (cf.People v Griffin, 48 AD3d 1233, 1236 [2008], lv denied 10 NY3d 840 [2008]).Thus, "there is no [admissible] evidence of defendant's age, and the circumstantial evidencerelied upon by the People does not establish that defendant was at least 21 years old at the time ofthe crime" (People v Castro, 286 AD2d 989, 990 [2001], lv denied 97 NY2d 680[2001]). We therefore modify the judgment accordingly.
We reject defendant's further contention that the court erred in permitting an expert to testifyregarding the child sexual abuse accommodation syndrome (CSAAS). "Defendant complains thatthe expert's testimony was not adequately constrained because certain of the hypotheticalquestions too closely mirrored the [victim]'s circumstances and therefore improperly bolstered orvouched for [her] credibility so as to prove that the charged crimes occurred. To the extentdefendant now complains of specific questions, his argument is not preserved [for our review]because the [majority of those] questions were not objected to at trial" (People v Spicola, 16 NY3d 441,465-466 [2011], cert denied 565 US —, 132 S Ct 400 [2011]). In any event, theCourt of Appeals has " 'long held' evidence of psychological syndromes affecting certain crimevictims[, including CSAAS,] to be admissible for the purpose of explaining behavior that mightbe puzzling to a jury" (id. at 465; see People v Carroll, 95 NY2d 375, 387[2000]). Additionally, contrary to defendant's contention, the court properly provided the jurywith the standard Criminal Jury Instructions charge on expert testimony, rather than the expandedlimiting instruction requested by defendant (see People v Gregory, 78 AD3d 1246, 1247-1248 [2010], lvdenied 16 NY3d 831 [2011]).
We also reject defendant's contention that the court abused its discretion in permitting thePeople to introduce evidence in their direct case that defendant engaged in other unchargedsexual conduct with the victim on the day of the incident and that he made veiled threats to her.That evidence was admissible to complete the narrative of the events charged in the indictmentand to explain how the victim's fear of defendant may have led to her delay in reporting theincident (see People v Shofkom, 63AD3d 1286, 1287 [2009], lv denied 13 NY3d 799 [2009], appeal dismissed13 NY3d 933 [2010]; People vWorkman, 56 AD3d 1155, 1156-1157 [2008], lv denied 12 NY3d 789 [2009]; People v Higgins, 12 AD3d 775,777-778 [2004], lv denied 4 NY3d 764 [2005]). Consequently, "the evidence in this casewas not propensity evidence . . . ; it provided necessary background information onthe nature of the relationship and placed the charged conduct in context" (People v Dorm, 12 NY3d 16, 19[2009]).
Defendant failed to preserve for our review his further contention that the court negated thepresumption of innocence by instructing the jurors not to deliberate prior to the conclusion of thetrial without also instructing the jury at that time that defendant is presumed innocent. Contraryto defendant's assertion, that contention does not raise a mode of proceedings error, and thuspreservation is required. Notably, defendant's challenge is not to the instruction that the courtgave, which was proper (see generally People v Horney, 112 AD2d 841, 843 [1985],lv denied 66 NY2d 615 [1985]); rather, as stated above, his challenge is to the court'sfailure to provide a presumption of innocence instruction at that time in addition to providing thatinstruction as part [*3]of its final instructions. Defendant,however, failed to preserve that contention for our review "by a timely objection or request tocharge" (People v Bonaparte, 78 NY2d 26, 31 n [1991]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
Contrary to defendant's contention, the court did not err in permitting a witness to testify that,two days after the incident, the victim reported that she had been the victim of a sexual attack. Indefense counsel's opening statement and cross-examination of the victim, he raised the defensethat the victim had fabricated the incident to "deflect[ ] attention from herself" and her drug use.Where, as here, "a 'witness'[s] testimony is assailed—either directly orinferentially—as a recent fabrication, the witness may be rehabilitated' with a priorconsistent statement made at a time predating the motive to fabricate" (People v Rosario, 17 NY3d 501,513 [2011], quoting People v McDaniel, 81 NY2d 10, 18 [1993]). Here, defendantcontended that the victim invented a story of rape after she was caught with drugs, but thewitness testified that the victim reported the rape before that time.
The majority of defendant's contentions with respect to alleged instances of prosecutorialmisconduct during the summation are not preserved for our review (see CPL 470.05 [2]).In any event, even assuming, arguendo, that some of the prosecutor's comments were not a fairresponse to defense counsel's summation or were not within the " 'broad bounds of rhetoricalcomment permissible in closing argument' " (People v Williams, 28 AD3d 1059, 1061 [2006], affd 8NY3d 854 [2007], quoting People v Galloway, 54 NY2d 396, 399 [1981]), we concludethat "they were not so egregious as to deprive defendant of a fair trial" (People v McEathron, 86 AD3d915, 916 [2011], lv denied 19 NY3d 975; see People v Rivera, 281 AD2d927, 928 [2001], lv denied 96 NY2d 906 [2001]; People v Walker, 234 AD2d962, 963 [1996], lv denied 89 NY2d 1042 [1997]).
We agree with defendant, however, that the "court erred in admitting testimony concerningdefendant's decision not to meet with the police . . . and in allowing the prosecutorto comment on defendant's decision on summation" (People v Kobza, 66 AD3d 1387, 1389 [2009], lv denied 13NY3d 939 [2010]; see generally People v De George, 73 NY2d 614, 617-618 [1989]).Nevertheless, we conclude that there is "no reasonable possibility that the error might havecontributed to defendant's conviction and thus that the error is harmless beyond a reasonabledoubt" (Kobza, 66 AD3d at 1389; see generally People v Crimmins, 36 NY2d230, 237 [1975]).
The sentence is not unduly harsh or severe. We have considered defendant's remainingcontentions and conclude that none requires reversal or further modification of the judgment.Present—Smith, J.P., Peradotto, Carni, Lindley and Martoche, JJ.