| People v Ross |
| 2013 NY Slip Op 01860 [104 AD3d 878] |
| March 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ezikiel Ross, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan,and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Mullen, J.), rendered December 18, 2008, convicting him of criminal sexual act in thefirst degree, sexual abuse in the first degree (five counts), assault in the second degree(two counts), and unlawful possession of marihuana, upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the facts, by vacating the conviction ofcriminal sexual act in the first degree, vacating the sentence imposed thereon, anddismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant correctly contends that his conviction of criminal sexual act in the firstdegree is against the weight of the evidence. In fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we essentially sit as the "thirteenth juror" and "decide[ ] which factswere proven at trial" (People v Danielson, 9 NY3d at 348; see People v Chase, 60 AD3d1077, 1078 [2009]). Here, we take no issue with the credibility of the People'switnesses, or the jury's decision to credit the complainant's version of events over that ofthe defendant. However, weight of the evidence review is not limited to issues ofcredibility (see People v Danielson, 9 NY3d at 350). Rather, "in conducting itsweight of the evidence review, a court must consider the elements of the crime, for evenif the prosecution's witnesses were credible their testimony must prove the elements ofthe crime beyond a reasonable doubt" (id. at 349).
A person is guilty of criminal sexual act in the first degree "when he or she engagesin . . . anal sexual conduct with another person" by "forcible compulsion"(Penal Law § 130.50 [1]). While the statute is "silent on the subject, intent isimplicitly an element" of this crime, and "the intent required is the intent to perform theprohibited act—i.e., the intent to forcibly compel another to engage in. . . [anal sexual conduct]" (People v Williams, 81 NY2d 303,316-317 [1993]). In the present case, the complainant testified that the defendant orderedher to put his penis "on" or "in" her vagina, but that, for personal, religious reasons, thecomplainant decided instead to put the defendant's penis on her anus. At that point, thedefendant again ordered the complainant to put his penis "on" or "in" her vagina, and thecomplainant again touched the defendant's penis to her anus. It was only when [*2]the defendant yelled that the complainant finally compliedwith the defendant's demand, and put his penis on her vagina. Under these unusualcircumstances, the People failed to prove beyond a reasonable doubt that the defendantintentionally engaged in anal sexual conduct with the complainant by forciblecompulsion. Accordingly, the defendant's conviction of criminal sexual act in the firstdegree must be vacated as against the weight of the evidence.
Relative to the remaining convictions, the trial court improvidently exercised itsdiscretion in admitting evidence of an uncharged crime (see People v Clarke, 90 AD3d777 [2011]; People v Tucker, 102 AD2d 535, 537-538 [1984]). Nonetheless,the error was harmless as there was overwhelming evidence of the defendant's guilt andno significant probability that the alleged error contributed to his conviction (seePeople v Crimmins, 36 NY2d 230, 241-242 [1975]).
The defendant's contention that the prosecutor engaged in misconduct duringcross-examination and that various remarks made by the prosecutor during the openingstatement and the summation were improper and deprived him of a fair trial is, for themost part, unpreserved for appellate review (see CPL 470.05 [2]). In any event,while the challenged questioning during cross-examination and some of the prosecutor'scomments during her opening statement and summation were improper, they constitutedharmless error, and did not deprive the defendant of a fair trial (see People vCrimmins, 36 NY2d at 241-242).
The defendant's remaining contentions, including that raised in his pro sesupplemental brief, either are without merit or need not be reached in light of ourdetermination. Skelos, J.P., Leventhal, Hall and Lott, JJ., concur.