| People v Singh |
| 2013 NY Slip Op 06033 [109 AD3d 1010] |
| September 25, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Harpreet Singh, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kohm, J.), rendered June 23, 2010, convicting him of rape in the first degree (sixcounts), criminal sexual act in the first degree (five counts), sexual abuse in the firstdegree, rape in the third degree (nine counts), and coercion in the second degree, upon ajury verdict, and sentencing him to determinate terms of imprisonment of 17½years followed by periods of 20 years of postrelease supervision on the convictions ofrape in the first degree, to run concurrently with each other and with the sentencesimposed for the convictions of rape in the third degree and coercion in the seconddegree, and consecutively with the sentences imposed on the convictions of criminalsexual act in the first degree, determinate terms of imprisonment of 17½ yearsfollowed by periods of 20 years of postrelease supervision on the convictions of criminalsexual act in the first degree, to run concurrently with each other, a determinate term ofimprisonment of five years followed by a period of 10 years of postrelease supervisionon the conviction of sexual abuse in the first degree, to run concurrently with all othersentences imposed, a determinate term of imprisonment of three years followed by aperiod of 10 years of postrelease supervision on the conviction of rape in the thirddegree, to run concurrently with each other, and a definite term of incarceration of oneyear on the conviction of coercion in the second degree.
Ordered that the judgment is modified, on the law, on the facts, and as a matter ofdiscretion in the interest of justice, (1) by vacating the conviction of coercion in thesecond degree under count 22 of the indictment, vacating the sentence imposed thereon,and dismissing that count of the indictment, (2) by reducing the terms of imprisonmentimposed on the convictions of rape in the first degree and the convictions of criminalsexual act in the first degree from determinate terms of imprisonment of 17½ yearsto determinate terms of imprisonment of 15 years, and (3) by directing that the terms ofimprisonment for the convictions of rape in the first degree, criminal sexual act in thefirst degree, and sexual abuse in the first degree shall all run concurrently with eachother, except for the term of imprisonment for criminal sexual act in the first degreeunder count 11 of the indictment, which shall run consecutively to the sentences imposedon the convictions of rape in the first degree; as so modified, the judgment is affirmed.
After a trial, a jury found that the defendant acted in concert with five codefendants[*2]in committing multiple rapes of the complainant, andconvicted him of six counts of rape in the first degree, five counts of criminal sexual actin the first degree, one count of sexual abuse in the first degree, nine counts of rape in thethird degree, and one count of coercion in the second degree. The evidence at trialestablished that the defendant lured the complainant, a 16-year-old girl with whom hehad been communicating over the course of several months, to an apartment where, afterengaging in consensual sex with the complainant, the defendant left her alone and nakedin the bedroom for each codefendant to take a turn to engage in sexual acts with her.
The defendant failed to preserve for appellate review his contention that the evidenceestablished only that he acted in concert to compel the complainant to have sexualrelations with his friends by use of threats to post compromising photographs of her onthe Internet, not by use of forcible compulsion, an element of the charges of first-degreerape, first-degree criminal sexual act, and first-degree sexual abuse (see PenalLaw §§ 130.35 [1]; 130.50 [1]; 130.65 [1]). In any event, viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d620 [1983]), we find that there is a "valid line of reasoning and permissible inferenceswhich could lead a rational person to the conclusion reached by the jury on the basis ofthe evidence at trial" (People v Mateo, 2 NY3d 383, 409 [2004], certdenied 542 US 946 [2004] [internal quotation marks omitted]; see People v Cahill, 2 NY3d14, 57 [2003]; People v Cabey, 85 NY2d 417, 420 [1995]; People vBleakley, 69 NY2d 490, 495 [1987]). Moreover, upon exercising our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt with respectto these crimes was not against the weight of the evidence (see People v Danielson, 9NY3d 342 [2007]; People vRomero, 7 NY3d 633 [2006]). Even if the defendant did not initially plan thathis friends would use forcible compulsion, the totality of the evidence permitted the juryto infer that the defendant knew that the codefendants, once inside the bedroom, were, infact, using forcible compulsion, and that "he knowingly participated and continued toparticipate even after his companion[s'] intentions became clear" (People v Allah,71 NY2d 830, 832 [1988]; see Penal Law § 20.00; People vRossey, 89 NY2d 970, 972 [1997]; People v Whatley, 69 NY2d 784, 785[1987]; People v Clark, 222 AD2d 446, 447 [1995]). Moreover, because thedefendant's conduct "prior to, during and after the rape[s] sufficiently establish[ed] hisliability as an accessory" (People v Garner, 190 AD2d 994, 995 [1993]), "[t]hefact that [he] was not present during the entire duration of the sexual assault[s] did notrelieve [him] of accessorial liability pursuant to Penal Law § 20.00" (People v Sabatino, 41 AD3d871, 872 [2007]; seePeople v Wooden, 4 AD3d 775 [2004]; People v Garner, 190 AD2d at995; People v Raphael, 134 AD2d 535 [1987]) with regard to the acts of any ofthe codefendants.
However, the verdict of guilt on the count charging the defendant with coercion inthe second degree was against the weight of the evidence. A person is guilty of coercionin the second degree when "he or she compels or induces a person to engage in conductwhich the latter has a legal right to abstain from engaging in . . . by meansof instilling in him or her a fear that, if the demand is not complied with, the actor oranother will . . . [p]erform any other act which would not in itself materiallybenefit the actor but which is calculated to harm another person materially with respect tohis or her health, safety, business, calling, career, financial condition, reputation orpersonal relationships" (Penal Law § 135.60 [9]). Here, the trial court charged thejury that, to find the defendant guilty of coercion in the second degree, they would haveto find that the People had proved, beyond a reasonable doubt, that the defendant"compelled or induced [the complainant] to engage in conduct which she had a legalright to abstain from engaging in, and that the defendant did so by means of instilling in[her] a fear that if the demand were not complied with, the defendant or another wouldpost nude photographs of [the complainant] on the Internet." As there is no evidence,under any theory, that the complainant was coerced into conduct by the defendant'sthreats, the conviction of coercion in the second degree must be vacated. We note that,having relied upon one theory at trial, namely that the complainant was induced by thedefendant's threats to engage in sexual intercourse with him, the People may not, havingabandoned their original theory, assert for the first time on appeal that the defendant'sthreats induced the complainant to meet him at the mall (see People v Dodt, 61NY2d 408, 416 [1984]; Peoplev Vargas, 89 AD3d 771, 772 [2011]; People v Perlstein, 97 AD2d 482,484 [1983]).
The defendant's arguments regarding alleged prosecutorial misconduct duringsummation are unpreserved for appellate review, as the defendant failed to object to thechallenged remarks or, when an objection was sustained, failed to request furtherinstructions or move for a [*3]mistrial (see CPL470.05 [2]; People v Gill,54 AD3d 965, 966 [2008]; People v Banks, 74 AD3d 1214, 1215 [2010]; People v Mitchell, 68 AD3d784, 785 [2009]). In any event, the challenged remarks constituted a fair response todefense counsel's summation or fair comment on the evidence or inferences drawntherefrom (see People v Banks, 74 AD3d at 1215; People v Rudd, 62 AD3d729, 729 [2009]; People vDorgan, 42 AD3d 505 [2007]), or constituted harmless error (see People vReddick, 65 NY2d 835, 836 [1985]; People v Crimmins, 36 NY2d 230, 241[1975]; People v Kinard, 96AD3d 976 [2012]; People vMullings, 88 AD3d 745 [2011]).
The imposition of consecutive sentences on the convictions of rape in the firstdegree, criminal sexual act in the first degree, and sexual abuse in the first degree, wasillegal, except with respect to the sentence imposed on the conviction of criminal sexualact in the first degree under count 11. "Although this issue was not raised before the[sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand" (People v Carter, 96 AD3d1520, 1522 [2012] [internal quotation marks omitted]; see People v Davis, 37 AD3d1179, 1180 [2007]). Moreover, "a defendant may not waive the right to challengethe legality of a sentence" (People v Seaberg, 74 NY2d 1, 9 [1989]; seePeople v Streeter, 198 AD2d 456, 457 [1993]).
Section 70.25 of the Penal Law provides that "[w]hen more than one sentence ofimprisonment is imposed on a person for two or more offenses committed through asingle act or omission, or through an act or omission which in itself constituted one ofthe offenses and also was a material element of the other, the sentences . . .must run concurrently" (Penal Law § 70.25 [2]). "Under either of thosecircumstances, the court has no discretion; concurrent sentences are mandated" (People v Hamilton, 4 NY3d654, 658 [2005]; see People v Ramirez, 89 NY2d 444 [1996]). Indetermining whether two crimes were separate and distinct for the purposes of imposingconsecutive or concurrent sentences, "it is the acts of the defendant that control"(People v Ramirez, 89 NY2d at 453). When the actus reus, or the " 'wrongfuldeed that comprises the physical components of a crime' " (People v McKnight,16 NY3d 43, 48 [2010], quoting People v Rosas, 8 NY3d 493, 496 n 2 [2007]),is a "single, inseparable act" that violates more than one statute, single punishment mustbe imposed (see People v McKnight, 16 NY3d at 48; People v Ramirez,89 NY2d at 453).
Here, the actus reus committed by the defendant in concert with each codefendantwas "a single, inseparable act" (People v Ramirez, 89 NY2d at 453). With respectto each codefendant, the defendant's actus reus violated more than one statute due solelyto the acts committed by the codefendant after the defendant had already completed hisrole. Each actus reus of the defendant "warrants [only] a single punishment"(id.; cf. People v Brathwaite, 63 NY2d 839 [1984]). The concurrent17½-year sentences imposed on the convictions of rape in the first degree undercounts 1 through 6, and the concurrent 17½-year sentences imposed on theconvictions of criminal sexual act in the first degree under counts 7 through 10 were fortwo crimes perpetrated by the same set of codefendants, but the defendant committedonly one actus reus with respect to each codefendant. Thus, those sentences must runconcurrently with each other (see People v Ramirez, 89 NY2d at 453). Likewise,the sentences imposed on the convictions of criminal sexual act in the first degree undercount 11 and sexual abuse in the first degree under count 12, in which the defendant wascharged with acting in concert with a single codefendant, must run concurrently witheach other. However, since the codefendant involved in the conduct underlying count 11was not involved in the conduct underlying counts 1 through 6, it is permissible for thesentence imposed on the conviction of criminal sexual act in the first degree under count11 to run consecutively to the sentences imposed on the convictions of rape in the firstdegree under counts 1 through 6.
The sentences imposed upon the convictions of rape in the first degree and theconvictions of criminal sexual act in the first degree were excessive to the extentindicated (see People vBarone, 101 AD3d 585 [2012]; People v Schonfeld, 68 AD3d 449, 450 [2009]; People v Pedraza, 25 AD3d394, 397 [2006]; People v Slobodan, 67 AD2d 630 [1979]). Mastro, J.P.,Austin, Roman and Cohen, JJ., concur.