| People v Tompkins |
| 2013 NY Slip Op 04050 [107 AD3d 1037] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vQuentin M. Tompkins, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Delaware County(Becker, J.), rendered July 6, 2010, upon a verdict convicting defendant of the crimes ofrape in the first degree and criminal trespass in the second degree.
Defendant entered, without permission, the unlocked home of his former girlfriend'sfather. His former girlfriend (hereinafter the victim) was there alone and, after talkingwith her for about half an hour, he allegedly forced her to engage in sexual intercoursewith him. The victim reported the incident to police five days later and she thenattempted to elicit inculpatory statements from defendant in a phone conversation thatwas monitored and recorded by police. Defendant was arrested, read his Mirandarights, and questioned by police in a video-recorded session that lasted a little over anhour, and terminated when defendant invoked his right to counsel. Defendant wasindicted on one count of rape in the first degree and one count of criminal trespass in thesecond degree. He moved to suppress, among other things, statements that he had madeduring the video-recorded questioning by police. County Court denied defendant'ssuppression motion following a Huntley hearing. A jury trial ensued and resultedin defendant's conviction on both counts. He was sentenced to 10 years in prison togetherwith postrelease supervision on the rape conviction, and a concurrent term of one yearfor criminal trespass. Defendant appeals.
We affirm. Defendant contends that his conviction of rape in the first degree is not[*2]supported by legally sufficient evidence and isagainst the weight of the evidence. Defendant failed to preserve the legal sufficiencyargument with an appropriate objection at trial (see People v Finger, 95 NY2d894, 895 [2000]; People vAdamek, 69 AD3d 979, 980 [2010], lv denied 14 NY3d 797 [2010])."However, we necessarily review the evidence adduced as to each of the elements of thecrime[ ] in the context of our review of defendant's challenge regarding the weight of theevidence, and there is no preservation requirement for weight of the evidence review"(People v Mann, 63 AD3d1372, 1373 [2009], lv denied 13 NY3d 861 [2009] [internal quotation marksand citations omitted]; seePeople v Townsend, 94 AD3d 1330, 1330 n 1 [2012], lv denied 19NY3d 1105 [2012]). A different verdict would not have been unreasonable and, thus, inour weight of the evidence review we "must, like the trier of fact below, weigh therelative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d490, 495 [1987] [internal quotation marks and citation omitted]; see People v Romero, 7 NY3d633, 643 [2006]). "[D]eference is accorded to the fact-finder's opportunity to viewthe witnesses, hear the testimony and observe demeanor" (People v Bleakley, 69NY2d at 495; see People vLopez-Aguilar, 64 AD3d 1037, 1037 [2009], lv dismissed 13 NY3d 940[2010]).
The victim testified that, although she and defendant had previously cohabitated, shehad ended the romantic aspect of their relationship approximately two months earlier.Defendant arrived uninvited at her father's trailer, where the victim was alone, and hewalked in without permission. She asked him to leave, but he reportedly refused andeventually began kissing and touching her. The victim explained that she repeatedly toldhim to leave and she moved away from him. Defendant, who was 21 years old, 6 feet 2or 3 inches tall and weighed 180 to 190 pounds, attempted to move on top of the victim,who was 19 years old, 5 feet 5 or 6 inches tall and weighed 120 to 125 pounds. Sherecalled that he was forcing himself on her and that she continued to resist physically andverbally. He started unbuttoning her pants, she struggled to rebutton them, he managed tounbutton and remove them, quickly removed his own pants and then got on top of her.The victim indicated that she tried to push defendant away, but was unable to because ofhis greater size and strength. He penetrated her and, according to the victim, she startedscreaming and crying, telling him to stop. She related that defendant stopped, apologized,retrieved a compact disk containing music from his vehicle and remained at the trailer forup to an hour.
Defendant attempted to undermine the victim's credibility by, among other things,bringing out evidence of her delay in reporting the incident and her failure to mention itto a health care provider she visited for a routine visit two days after the incident. Therecorded phone call that the victim made to defendant, while not containing a directadmission, included defendant not denying the victim's statements to him that he hadforced himself on her and raped her. The video-recorded police interview of defendant,in which he denied the alleged conduct but also made some inconsistent inculpatorycomments, is, in our view, of little value in the overall weight of the proof.
Nonetheless, it is clear that the jury found the victim to be a credible witness. Hertestimony provided sufficient proof of forcible compulsion (see People v Val, 38 AD3d928, 929 [2007], lv denied 9 NY3d 852 [2007]; People v Plaisted, 2 AD3d906, 907 [2003], lv denied 2 NY3d 744 [2004]), as well as the otherelements of rape in the first degree. We find no reason to disregard the jury's credibilitydetermination. Upon weighing and considering all the evidence in the record, we areunpersuaded that the verdict was against the weight of the evidence.[*3]
County Court did not err in denying defendant'smotion to suppress statements he made during the video-recorded police interview. Hewas given Miranda warnings before the questioning began, he elected to talk tothe police, and the interview ceased once he invoked his right to counsel. The varioustactics used by police during their questioning did not overbear defendant's will or createa substantial risk that he would falsely incriminate himself (see People v Spencer, 16AD3d 918, 919 [2005], lv denied 5 NY3d 770 [2005]; People v Lyons, 4 AD3d549, 552 [2004]; People v Huntley, 259 AD2d 843, 845-846 [1999], lvdenied 93 NY2d 972 [1999]).
Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.