| People v Bjork |
| 2013 NY Slip Op 02782 [105 AD3d 1258] |
| April 25, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRaymond R. Bjork, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered November 24, 2010, upon a verdict convicting defendant of thecrimes of criminal sexual act in the first degree (two counts), sexual abuse in the firstdegree, rape in the first degree, sexually motivated felony and unauthorized use of avehicle in the third degree.
In February 2009, the victim, who had spent an evening drinking in the City ofOgdensburg, St. Lawrence County, encountered defendant at a bar. Defendant allegedlyapproached the victim and "brush[ed] up against her" repeatedly in spite of her efforts torebuff him. The victim became ill due to her intoxication, and her cousin, the cousin'shusband and defendant took her to her home later that night. The cousin and defendantassisted the victim upstairs and put her to bed, where the victim allegedly asked thecousin to make sure defendant left the house, and then fell asleep. The cousin testifiedthat defendant refused to leave the house at her request and did not do so until thecousin's husband intervened. The cousin and husband offered defendant a ride to hishome but, at his request, dropped him off instead at a friend's apartment that was closerto the victim's home. Sometime during the next hour, the victim allegedly awoke to finddefendant in her bed, having vaginal intercourse with her.
The initial grand jury indictment charging defendant with several counts wasdismissed by County Court. The People then obtained DNA evidence and, with leavefrom the court, re-[*2]presented the case to a new grandjury. Defendant was indicted on seven counts, including some upon which the first grandjury had deadlocked. He moved to dismiss the previously deadlocked counts on theground that his statutory speedy trial rights had been denied, and the court denied themotion. Following a jury trial, defendant was found guilty of criminal sexual act in thefirst degree (two counts), sexual abuse in the first degree, rape in the first degree,burglary in the second degree as a sexually motivated felony and unauthorized use of avehicle in the third degree. County Court sentenced him as a second violent felonyoffender to concurrent prison terms of 15 years on the criminal sexual act counts, 15years on the sexually motivated felony count, seven years on the sexual abuse count andone year for unauthorized use of a vehicle, with 15 years of postrelease supervision. Hewas further sentenced to a prison term of 18 years on the rape count with 20 years ofpostrelease supervision, to run consecutively with his sentences on the other counts.Defendant appeals.
Initially, we reject defendant's claim that he was denied his statutory right to a speedytrial as to the charges on which the first grand jury deadlocked. Pursuant to CPL 30.30(1) (a), the People must be ready for trial within six calendar months of thecommencement of a criminal action charging a defendant with a felony, "which occurswith the filing of the first accusatory instrument" (People v Prunier, 100 AD3d 1269, 1270 [2012]). Here, theaction was commenced by filing a felony complaint on February 14, 2009, and thePeople declared readiness for trial 10 days later. The first indictment was dismissed onSeptember 28, 2009, and the People declared readiness on the second indictment 38 daysthereafter on November 5, 2009, for a total of only 48 days chargeable to the People.Contrary to defendant's claim, the speedy trial "clock" did not continue to run after thefirst declaration of readiness as to the charges on which the grand jury deadlocked. Thesecharges were "directly derived" from the first accusatory instrument (CPL 1.20 [16] [b]),and as they are "sufficiently related to apply the same commencement date, they arelikewise sufficiently related for purposes of applying excludable time" (People v Farkas, 16 NY3d190, 194 [2011]; see People v Sinistaj, 67 NY2d 236, 237 [1986]; People v Pope, 96 AD3d1231, 1232 [2012]; Peoplev Galloway, 93 AD3d 1069, 1070 [2012], lv denied 19 NY3d 996[2012]).
Next, defendant contends that, with the exception of the conviction for unauthorizeduse of a vehicle in the third degree, his convictions are not supported by legally sufficientevidence. Although he failed to preserve this claim by renewing his trial motion todismiss following the People's presentation of rebuttal evidence (see People v Valentin, 95AD3d 1373, 1374 [2012], lv denied 19 NY3d 1002 [2012]; People v Garcia, 79 AD3d1248, 1250 [2010], lv denied 16 NY3d 797 [2011]), he also challenges theweight of the evidence, and such review requires this Court to determine whetherevidence supports each element of the crimes (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Townsend, 94 AD3d1330, 1330 n 1 [2012], lv denied 19 NY3d 1105 [2012]). We find thatdefendant's convictions of criminal sexual act in the first degree must be reversed. "Aperson may not be convicted of any offense solely upon evidence of a confession oradmission made by him [or her] without additional proof that the offense charged hasbeen committed" (CPL 60.50). While this additional proof "need not corroborate everydetail of the confession" (People v Morgan, 246 AD2d 686, 686 [1998], lvdenied 91 NY2d 975 [1998]), both of defendant's criminal sexual act convictionswere based solely upon his uncorroborated admissions that he performed oral sex on thevictim. Defendant's presence at the scene did not provide the necessary corroborationbecause the issue is not his identity or connection to the crime but, instead, whether thecrimes occurred at all. As there was no corroborating proof "of whatever weight," thesecharges must be dismissed (People v Daniels, 37 NY2d 624, 629 [1975]; see People v Porlier, 55 AD3d1059, 1062 [2008]; People v McAuliffe, [*3]220 AD2d 859, 860-861 [1995]).
We reject defendant's contention that the People did not meet their burden to provethat the victim was physically helpless. For purposes of defendant's convictions forsexual abuse in the first degree and rape in the first degree, a person is physically helplesswhen he or she "is unconscious or for any other reason is physically unable tocommunicate unwillingness to an act" (Penal Law § 130.00 [7]; see PenalLaw §§ 130.35 [2]; 130.50 [2]; 130.65 [2]). A person who is asleep orunable to communicate as a result of voluntary intoxication is considered to be physicallyhelpless (see People v Morrow, 304 AD2d 1040, 1042 [2003], lv denied100 NY2d 564 [2003]; People v Himmel, 252 AD2d 273, 275-276 [1999], lvdenied 93 NY2d 899 [1999]). Here, the victim testified that she consumed asubstantial amount of alcohol on the evening in question, was intoxicated from the timeshe visited the bar where she met defendant until she arrived at the hospital the followingmorning and, as a result, has little memory of the latter part of the evening and nomemory at all of the period when she was at home before waking to find defendant in herbed. Other witnesses who were with the victim that night testified that she was veryintoxicated, slurred her words, staggered, was nauseous, could not keep her head upwhile speaking and fell asleep upon being put to bed. A police officer who interviewedher at the hospital the next morning testified that her eyes were bloodshot and shesmelled of alcohol, and a test administered at 9:45 a.m. revealed that her blood alcoholcontent was .09.
Defendant did not testify at trial but, in his testimony before both grandjuries—which was read to the trial jury—he claimed, among other things,that the victim was "[n]ot intoxicated to the point where she didn't know what was goingon" and that, when he returned to her house after being dropped off at his friend's home,she answered the door and let him inside. He asserted that she then initiated sexualcontact between them and allowed him to perform oral sex on her and to insert hisfingers into her vagina. However, he denied that any vaginal intercourse occurred,claiming that he could not achieve an erection and that, upon realizing this, the victimdirected him to get off her and leave, which he did. Notably, whether a victim isphysically helpless is a question of fact for the jury to resolve and, upon our independentreview, we find no reason to disturb its credibility determinations in this regard (see People v Manning, 81AD3d 1181, 1181 [2011], lv denied 18 NY3d 959 [2012]; People v Thomas, 21 AD3d643, 645 [2005], lv denied 6 NY3d 759 [2005]; People vSensourichanh, 290 AD2d 886, 887-888 [2002]).
Given this conclusion, the victim's testimony that vaginal intercourse was occurringwhen she awoke, and DNA test results indicating that defendant's sperm was present inher vagina, we find that defendant's conviction for rape in the first degree is not againstthe weight of the evidence (seePeople v Shepherd, 83 AD3d 1298, 1298-1299 [2011], lv denied 17NY3d 809 [2011]; People vFuller, 50 AD3d 1171, 1174 [2008], lv denied 11 NY3d 788 [2008]).Likewise, based on the DNA evidence and defendant's admission that he placed hisfingers—with sperm on them resulting from a premature orgasm—in thevictim's vagina, we will not disturb the conviction for sexual abuse in the first degree (see People v Wicks, 73 AD3d1233, 1234 [2010], lv denied 15 NY3d 857 [2010]; People v Fuller,50 AD3d at 1174-1175; Peoplev Stasiak, 25 AD3d 1025, 1026 [2006]).
Defendant did not, as he contends, prove his affirmative defense that, at the time hecommitted the sexual offenses based on physical helplessness, he "did not know of thefacts or conditions responsible for [the victim's] incapacity to consent" (Penal Law§ 130.10 [1]). In this regard, he relies on his grand jury testimony that the victimwas neither unconscious during their encounter nor so intoxicated that she did notunderstand what was occurring, as well as expert [*4]trialtestimony to the effect that the victim would have shown no signs—other thanheavy intoxication—of the "blackout" that later kept her from remembering theencounter. However, the jury was not required to credit defendant's version of events,and plainly did not do so. Given the victim's testimony that she awoke from sleep to finddefendant having sex with her and the extensive evidence of her severe intoxicationwhile in defendant's company shortly before the offenses werecommitted—including testimony that she was barely conscious when she reachedher home and almost immediately fell asleep—we have no difficulty in concludingthat defendant did not meet his burden to establish this defense by a preponderance of theevidence (see Penal Law § 25.00 [2]).
We are unpersuaded by defendant's claim that his conviction for burglary in thesecond degree as a sexually motivated felony must be reversed because the People failedto prove beyond a reasonable doubt that he entered the victim's home "when he [was] notlicensed or privileged to do so" (Penal Law § 140.00 [5]; see Penal Law§§ 130.91 [1]; 140.25). Defendant claims that the victim let him into herhome, and he argues that this is the only reasonable explanation for his presence inside,given the undisputed evidence that the door was locked and the absence of any showingof forced entry. However, no such showing was required (see e.g. People vBerry, 275 AD2d 748, 748 [2000], lv denied 96 NY2d 732 [2001]). Thevictim testified that she did not let defendant in and that she was asleep before she woketo find defendant in her bed. While she qualified this testimony by acknowledging oncross-examination that she had no memory of the time period in question and did notknow whether or not she opened the door, the jury was free to accept or reject anytestimony and was not required to credit defendant's claim that she did so (see People v Hargett, 11 AD3d812, 814 [2004], lv denied 4 NY3d 744 [2004]). There was considerableevidence that the victim had repeatedly rebuffed defendant's attentions earlier in theevening and, after allowing him to help her to return home, had stated that she did notwant him to remain there. The cousin testified that when she left the victim's home withdefendant, he told her that the door was locked but that she checked, and in fact it wasnot. He offered several inconsistent explanations for his subsequent refusal of the offerof a ride to his own home and his surreptitious return to the victim's home. Finally, inaddition to testimony that the victim sometimes left a spare key in her mailbox, there wasevidence that defendant had used the victim's keys earlier that evening and no clear proofbeyond his own testimony that he gave them back before he returned to her home.
The People also offered the testimony of a police officer who, in an experimentconducted the next day, used a credit card to open the door. However, there was noevidence that defendant knew how to "card" a door in this fashion, no witness testifiedthat he had any credit cards with him on the night in question, and no cards were foundon his person when he was arrested shortly thereafter. The results of a test of this natureare admissible only when the conditions under which it was conducted are sufficientlysimilar to make the result relevant (see Jerome Prince, Richardson on Evidence§ 4-219 [Farrell 11th ed 1995]). Here, there was no "substantial similarity"(People v Cohen, 50 NY2d 908, 910 [1980]) and, given the speculative nature ofthis test, defendant's objection to the admission of this testimony should have beensustained (see People v Walker, 274 AD2d 600, 602 [2000]; compare Peoplev Estrada, 109 AD2d 977, 978-979 [1985]). In view of the other evidence, however,we find that this error was harmless, and according deference to the jury's credibilitydeterminations, we find no reason to disturb its verdict on the burglary charge (seePeople v Hargett, 11 AD3d at 814; People v Matuszek, 300 AD2d 1131,1131-1132 [2002], lv denied 99 NY2d 630 [2003]; People v Webster,290 AD2d 659, 659-660 [2002], lv denied 98 NY2d 641[*5][2002]; see also People v Ryan, 180 AD2d 769,769 [1992], lv denied 79 NY2d 1054 [1992]).
Contrary to his claim, defendant received the effective assistance of counsel.Defendant's primary complaint addresses his counsel's failure to renew his trial motion todismiss following the People's presentation of rebuttal testimony. However, " '[t]heconstitutional right to the effective assistance of counsel does not mean that therepresentation was error free in every respect, but simply that defendant was afforded afair trial' " (People vJackson, 48 AD3d 891, 893 [2008], lv denied 10 NY3d 841 [2008],quoting People v Damphier,13 AD3d 663, 664 [2004]). Defendant concedes that this single failure was not"sufficiently egregious and prejudicial" to deprive him of that right (People v Caban, 5 NY3d143, 152 [2005]). Although he contends that other errors occurred, we find nonerising to the level of ineffective assistance. Defendant's claim that his counsel shouldhave made various objections is unsupported by any showing that these objections weremeritorious or that counsel had no strategic reason for failing to make them (see People v Taylor, 1 NY3d174, 177-178 [2003]), and counsel did make many successful objections in thecourse of the trial. Viewed as a whole, the record reveals that counsel also madeappropriate pretrial motions, pursued a credible—though ultimatelyunsuccessful—theory of defense, conducted vigorous cross-examination of thePeople's witnesses, and otherwise provided defendant with meaningful representation (see People v Jordan, 99 AD3d1109, 1110-1111 [2012], lv denied 20 NY3d 1012 [2013]; People v Bahr, 96 AD3d1165, 1166-1167 [2012], lv denied 19 NY3d 1024 [2012]).
Defendant next objects to factual annotations on the verdict sheet, contending that hedid not consent to them and that they were so prejudicial as to require reversal. Asdefendant argues, the inclusion of such notations without statutory authorization or hisconsent "offend[s] the letter of the law" (People v Washington, 9 AD3d 499, 500 [2004], lvdenied 3 NY3d 682 [2004] [internal quotation marks and citation omitted];see CPL 310.20 [2]), and the record reveals no express consent. However,"where a defendant is given adequate opportunity to review the verdict sheet and objectsonly to a portion of it, the failure to object to the remainder of the verdict sheetconstitutes implicit consent to the remaining annotations" (People v Washington,9 AD3d at 501; see People vJohnson, 96 AD3d 1586, 1587 [2012], lv denied 19 NY3d 1027[2012]). Here, after reviewing the verdict sheet, defense counsel objected to anunspecified "typo" but did not mention the annotations, and did not object when CountyCourt advised the jury that the attorneys had "approved" the verdict sheet. Accordingly,defendant's consent is implied.
Finally, defendant contends that his sentence is harsh and excessive. Givendefendant's criminal history and his failure to take responsibility for his actions, we findno extraordinary circumstances or abuse of discretion warranting modification of thesentences, the aggregate of which are less than the maximum allowable for hisconvictions (see People vHemingway, 85 AD3d 1299, 1303 [2011]; People v Lopez-Aguilar, 64 AD3d 1037, 1038 [2009],lv denied 13 NY3d 940 [2010]).
Peters, P.J., Spain and Egan Jr., JJ., concur. Ordered that the judgment is modified,on the facts, by reversing defendant's convictions for criminal sexual act in the firstdegree under counts 1 and 2 of the indictment; said counts dismissed and the sentencesimposed thereon vacated; and, as so modified, affirmed.